Federal Court of Australia

CPJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 202

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 and a Shia Muslim. He arrived in Australia on 18 January 2008 and resided here as the holder of successive student visas granted under the Migration Act 1958 (Cth), the latest expiring on 30 July 2011. An application for a further student visa was refused. On 14 May 2014 the appellant applied for a Protection (Class XA) visa. A delegate of the then-named Minister for Immigration and Border Protection refused the application. The Administrative Appeals Tribunal affirmed the delegate’s decision in the exercise of its powers of review under Pt 7 of the Act. The then-named Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal’s decision:  CPJ19 v Minister for Immigration & Anor [2020] FCCA 3015. This is an appeal from that judgment.

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

THE VISA APPLICATION

3    To qualify for the grant of the visa it was necessary that the Minister be satisfied that the criteria for the visa were fulfilled:  Act, s 65. The criteria for the grant of a protection visa include those prescribed in s 36 of the Act. It relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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; or

…

4    The word “refugee” is relevantly defined in s 5H of the Act as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

5    Section 5J relevantly provides:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6    After commencing his application for review in the Tribunal, the appellant made a claim to the effect that he was in a committed emotional relationship with a woman of the Hindu religion who is 22 years his senior, divorced and a mother of three children (Ms D).

7    On the basis of that relationship, the appellant claimed to be a person who satisfied either one of the alternate criteria for the grant of a protection visa under s 36(2)(a) of the Act (the refugee criterion) or s 36(2)(aa) of the Act (the complementary protection criterion).

THE TRIBUNAL’S DECISION

8    The Tribunal noted (correctly) that the appellant’s interfaith relationship with Ms D was the primary basis of his claim for protection. It summarised the submissions the appellant had made in support of the claim in terms that are not challenged:

72.    He claims he is a Shia Muslim man who is unable to legally marry a Hindu woman according to the Pakistani Muslim Family Law Ordinance 1961. He fears that they might be victims of honour crimes. He fears he would not get support from his family or friends and the Shia community will abandon him because his marriage would not be considered legal. He claims they will be targeted by the authorities and may be arrested by the Pakistani intelligence agencies. He claims his parents will arrange for him to enter into a ‘forced marriage’ against his will. In all the circumstances if he returns to Pakistan it would result in indefinite separation and he will be forced to denounce his relationship with [Ms D].

73.    In the alternative the applicant claims if [Ms D] and he can migrate to Pakistan and his family approve of their relationship and they can marry or otherwise cohabit in Pakistan and the authorities of Pakistan ignore that he is violating Islamic Sharia Law he fears he will be targeted and persecuted at the hands of religious clerics and broader communities for apostasy and blasphemy.

74.    The applicant acknowledges that pursuant to s.10(2) of the Pakistan Citizenship Act 1951 there is an exception which states that foreign women who are married to Pakistani men are entitled to Pakistani citizenship. He submits therefore it is essential that he and [Ms D] should marry before she applies for Pakistani citizenship.

75.    He claims despite the best of their intentions it is impossible for them to marry in Pakistan. He claims that it is implausible to foresee that [Ms D] can secure a Pakistani visa for the purpose of settling down with him in Pakistan due to the tense relationship between Pakistan and India.

9    The Tribunal referred to country information confirming that a Muslim man may not marry a Hindu woman in a religious ceremony in Pakistan. The country information confirmed that de facto marriages (as understood in Australia) were not recognised and may lead to “charges of extramarital sex”. The country information also confirmed that “Internationals” may not live in Pakistan for longer than six months. The Tribunal said that the appellant had the option to marry in a third country and proceeded on the basis that Ms D was able to apply for citizenship in Pakistan.

10    The Tribunal noted the appellant’s assertions that his relationship with Ms D commenced in August 2008, that the committed relationship began in about September 2010 and that they were engaged. It noted that Ms D had travelled to Australia on a visitor visa in August 2010, December 2010, July 2012, October 2012 and March 2013.

11    Following the hearing, the appellant provided the Tribunal with a letter from Ms D and a written submission. The Tribunal summarised Ms D’s letter in the following terms.

85    In post hearing submissions the applicant provided the Tribunal with a letter from [Ms D] dated 11 April 2019 and copies of her passports confirming her travel to Australia. The letter provides evidence of how [Ms D] met the applicant in Australia on 28 August 2010 and formed a relationship. She claims she was in an abusive relationship for 20 years in India and filed a petition for divorce before coming to Australia. She returned to India in February 2011 because of her ongoing divorce matter. On 28 February 2011 her divorce was finalised and it took several months to change her surname and obtain a new passport. She continued her relationship with the applicant over the telephone and he could not sponsor her due to his adverse immigration status. She returned to Australia in July 2012, October 2012 and her last visit to Australia was in March 2013. She has not returned to Australia since she last departed in June 2013.

86.    She continues to operate her business in India. She claims to belong to a conservative Hindu-Jat family which is highly intolerant as far as marrying out of their caste and religion is concerned. She claims that despite all these adverse circumstances she has never broken up with the applicant and is determined to remain with him. Significantly [Ms D] makes no mention of their engagement or any plans to marry in the future. She also states that she dreads to imagine relocating to Pakistan.

12    The Tribunal expressed concerns about the appellant’s claims that he had been in a committed relationship from 2010. Among those concerns was the circumstance that when the appellant had lodged his protection visa application in May 2014 he had not made any claim to fear persecution by reason of his interfaith relationship with Ms D if forcibly returned to Pakistan. The Tribunal went on to reject the explanation the appellant had given for failing to make any claim to fear persecution by reference to the relationship at that time.

13    The Tribunal accepted that the appellant may be in regular telephone contact with Ms D and that they may continue to feel emotionally committed to each other. In connection with that finding, the Tribunal said that it had had regard to the appellant’s post hearing submissions and the evidence provided by him in support of the relationship (which plainly included the letter from Ms D).

14    The Tribunal also accepted that Ms D was in a relationship with the appellant when she visited Australia, that they had shared accommodation and that their relationship was known to other people in Australia at those times.

15    However, the Tribunal did not accept that the appellant and Ms D had any genuine intention to marry in the foreseeable future. Its conclusions on that topic are expressed as follows (at [98]):

The Tribunal must assess the applicant’s claims looking to the reasonably foreseeable future. The Tribunal does not however accept that there is any genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future. The Tribunal makes this finding having had regard to the following evidence:

•    Despite claiming that he was engaged in August 2011 the applicant did not marry [Ms D] when they both lived in Australia together.

•    The applicant provided no evidence of their engagement in Australia.

•    There is no evidence the applicant or [Ms D] made any plans to marry in Australia, Pakistan or India.

•    When questioned about the proposed wedding he could not provide any details.

•    The applicant has not told his parents in Pakistan about the relationship and his intention to marry.

•    The applicant has not physically seen [Ms D] since she departed Australia in June 2013.

•    [Ms D] has been living and working in India since June 2013 and is now running her own business and there is no evidence that she intends to relocate to Pakistan.

•    Significantly as stated above, when the applicant lodged his protection visa application in 2014 he made no claims that he was in a relationship and feared returning to Pakistan because he intends to marry a divorced Indian Hindu woman who has adult children and is significantly older than him.

16    As to the claimed fear of a forced marriage, the Tribunal said that the appellant had provided no detail about his parents having arranged for him to enter into a forced marriage on his return to Pakistan, nor was there evidence that the appellant had received pressure or threats from his parents in relation to a forced marriage. The Tribunal said that it had to prompt the appellant to elicit meaningful evidence about his claimed fear in that respect. It said that the appellant’s responses were vague, lacking in detail and not credible. The Tribunal concluded:

103.    As detailed above the applicant has never disclosed to his family in Pakistan that he met [Ms D], was engaged and planned to marry her. In the circumstances the Tribunal finds it is mere speculation to conclude that his parents and/or the broader Shia community will cause him serious harm or significant harm, ostracise him and provide him with no support because of his interfaith relationship to a divorced Indian Hindu woman.

104.    The Tribunal accepts that there may be some cultural expectation for the applicant to marry a female who is a Shia Muslim and is chosen by his family in Pakistan. The Tribunal does not however accept that the applicant’s parents will force him to marry a woman against his wishes if he returns to Pakistan in the reasonably foreseeable future.

105.    The Tribunal is not satisfied that there is a real chance that the applicant will be a victim of an honour crime if he returns to Pakistan in the reasonably foreseeable future because he will refuse to enter into a forced marriage.

17    Later in its reasons the Tribunal repeated its concerns about the appellant’s delay in applying for a protection visa after he first arrived in Australia. Relevantly, the Tribunal said that it would have expected the appellant to apply for a protection visa soon after he entered into his relationship with Ms D if he had concerns about his safety in Pakistan by reason of it.

18    Having rejected the appellant’s claims that he and Ms D intended to “marry and/or live together in Pakistan”, the Tribunal was not satisfied that there was a real chance that the appellant would be exposed to serious harm or significant harm if returned to Pakistan by reference to all of the matters he had raised in connection with the relationship. Accordingly, the Tribunal was not satisfied that the appellant satisfied the refugee criterion or the complementary protection criterion (at [111] and [117] respectively).

reasons of the primary judge

19    On his application for judicial review, the onus was on the appellant to show that the Tribunal committed jurisdictional error:  Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82.

20    By his third and fourth grounds for judicial review, the appellant alleged that the Tribunal had failed to afford him procedural fairness by refusing to permit him to call Ms D to give oral evidence at the hearing of his application for review. Rejecting the contentions in support of those grounds, the primary judge concluded that the Tribunal had accepted the substance of Ms D’s written evidence, so that there was “nothing to suggest procedural unfairness in refusing to call Ms D to give evidence in the circumstances”:  CPJ19 at [23].

21    The fifth ground for judicial review was expressed as follows:

The Tribunal asked itself a wrong question.

(a)    The Tribunal erred in asking whether there was any ‘genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future’.

(b)    The correct question for the Tribunal to ask was whether the Applicant’s inability to live with Ms D in Pakistan constituted serious harm for the purposes of s 5J of the Migration Act 1958 and/or significant harm for the purposes of s 36(2A) of the Act.

22    The primary judge referred to the decision of the Full Court in Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145. In that case, the visa applicant was a Shia Muslim from Iraq. He claimed to fear psychological harm if returned there because he would be separated from his wife, a Thai woman who was unwilling to reside with him in Iraq because of persecution and harassment she had previously experienced there. The visa applicant was unable to see his wife and child in Thailand because he could not obtain a visa. The Full Court held that the Tribunal had failed to have regard to an essential integer of the visa applicant’s claims, namely that he would suffer psychological harm if returned to Iraq because he would be separated from his wife and child.

23    The primary judge said that the Full Court’s observations in SZQOT had been qualified by the doubts expressed by a differently constituted Full Court in GLD18 v Minister for Home Affairs [2020] FCAFC 2 as to whether the inability of a visa applicant and his partner to live together might fulfil the criteria for a protection visa. The primary judge continued:

26.    … The observations in GLD18 are that something more may be required, such as some ‘psychological harm’ if the applicant and his or her spouse were forced to separate and live apart.

27.    This case is factually very different to SZQOT. In my view, the Tribunal was concerned about an air of artificiality and contrivance in the applicant’s claims. The applicant claims he was engaged to Ms D in August 2011 and there was no indication that the applicant and Ms D would not be able to marry in Australia if they so wished. However, this has not occurred. While there was evidence they carried on a long distance relationship they had in fact not spent any time together since 2013. Apart from some brief periods together in 2010, 2012 and 2013, the applicant and Ms D have not lived together at all.

24    The primary judge said that the Tribunal’s finding at [18] of its reasons that there was no genuine intention for the appellant and Ms D to live together in Pakistan in the foreseeable future was “open to the Tribunal and not illogical or unreasonable”, before concluding (at [29]):

…  Given that finding, the question of whether the applicant would be exposed to serious or significant harm if he were to live in a relationship with Ms D in Pakistan is hypothetical. The Tribunal was not satisfied the real reason for the applicant and Ms D not marrying or living together was the circumstances they might face in Pakistan.

ISSUES ARISING ON THE APPEAL

25    The grounds of appeal are those contained in the appellant’s notice of appeal dated 4 December 2020:

1.    The learned trial judge erred by misapplying s36 of the Migration Act 1958 (Cth) and the definition of ‘refugee’ in s5H of that Act.

2.    Further and/or in the alternative, the learned trial judge erred in failing to find that the AAT had not properly applied the term ‘significant harm’ to the facts of this matter.

3.    The learned trial judge erred by failing to appreciate that the crux of the appellant’s case before the AAT was that wherever the appellant and Ms D were to marry, the marriage would never be recognised in Pakistan with the result that upon his return with her, he (and presumably her) would suffer relevant persecution or that he would have to abandon her, and face family pressure to enter a forced marriage on return to Pakistan, the consequences of which would amount either to persecution or meet the requirements for complementary protection. As such the learned trial judge erred by failing to find that the AAT failed to conduct a proper review.

4.    The learned trial judge erred by failing to find the AAT’s decision was unreasonable and therefore the AAT failed to conduct a proper review.

5.    The learned trial judge erred by failing to find the AAT did not properly grant the appellant procedural fairness and therefore the AAT failed to conduct a proper review.

6.    The learned trial judge erred by failing to find the AAT failed to give proper, genuine and realistic consideration to the merits of the case, including by the application of an active intellectual process and therefore that the AAT failed to conduct a proper review.

7.    The learned trial judge’s reasons were inadequate.

26    No written or oral submissions were advanced in support of the seventh ground of appeal. The reasons of the primary judge are adequately disclosed. That ground is rejected.

27    The written and oral submissions in respect of the remaining grounds were confined to the appellant’s claims concerning his interfaith relationship with Ms D. It may be observed that the grounds of appeal do not allege that the primary judge erred in rejecting the contention that the Tribunal had asked itself the wrong question by examining whether there was any genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future, as argued under the fifth ground for judicial review at first instance. The arguments advanced on this appeal were largely to the effect that the Tribunal’s substantive findings in answer to that question were affected by legal unreasonableness and otherwise arrived at in circumstances involving a breach of the rules of natural justice. Nor did submissions on the appeal address the question of whether (and if so how) any separation between the appellant and Ms D occasioned by his return to Pakistan would cause them “serious harm” as defined in s 5J(5) of the Act.

28    In written submissions, Counsel for the Minister identified two central issues arising on the agitated grounds of appeal to be:

(1)    whether the primary judge erred in concluding that the Tribunal did not deny the appellant procedural fairness in relation to its findings concerning Ms D; and

(2)    whether the primary judge erred in failing to find that the Tribunal’s conclusion that there was not any genuine intention for the appellant and Ms D to live together in Pakistan or to marry in the reasonably foreseeable future was unreasonable or illogical.

29    The appellant’s submissions adopted a similar approach.

30    I have concluded that the answer to each of those questions is no. As explained later in these reasons, that conclusion is determinative of all of the arguments advanced before me.

PROCEDURAL FAIRNESS

31    The appellant submitted that the Tribunal’s refusal to permit Ms D to give evidence orally by telephone at the hearing “robbed [the Tribunal] of an ability to properly assess her evidence”. It was submitted that if Ms D had given “direct evidence”, the Tribunal could have put all of its concerns to her and been “influenced by her answers”. It was submitted that the obligation to permit Ms D to give oral evidence arose because its findings necessarily involved a rejection of the statements Ms D had made in her letter about her relationship with the appellant.

32    Particular emphasis was placed on the Tribunal’s conclusion that there was no genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future. It was submitted that conclusion could not be drawn without the Tribunal’s concerns on the topic being put to Ms D so as to give her the opportunity to respond. The contention that the Tribunal was obliged to hear oral evidence from Ms D proceeded from the footing that it “operates in an inquisitorial regime”, that Ms D was a key witness and that a proper assessment of her credibility could not be made without hearing directly from her. The appellant relied upon Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, Gherga v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 351 and Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304.

Consideration

33    The appellant relied heavily on his description of the Tribunal’s review function as “inquisitorial” in nature, such as to give rise to an obligation in the present case to obtain oral evidence from Ms D. Whilst not altogether inaccurate, that label is not a basis for enlarging the Tribunal’s obligations beyond that for which the Act expressly or implicitly provides. As French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ explained in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15:

1    …  In the exercise of its review function, the tribunal may obtain such information as it considers relevant. In this sense, it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.

…

18    …  There is no joinder of issues as understood between parties to adversarial litigation. The word ‘inquisitorial’ has been used to indicate that the tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of ‘inquisitorial’ is ‘having or exercising the function of an inquisitor’, that is to say ‘one whose official duty it is to inquire, examine or investigate’. As applied to the tribunal ‘inquisitorial’ does not carry that full ordinary meaning. It merely delimits the nature of the tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to ‘review the decision’ which is the subject of a valid application made to the tribunal under s 412 of the Act.

(footnotes omitted)

34    As in SZIAI, the appellant’s application for review of the delegate’s decision was made in accordance with s 412 of the Act and was a “Part 7-reviewable decision”. Section 414 of the Act provides that if a valid application is made under s 412, the Tribunal must review the decision. The conduct of such a review is governed by Div 4 of Pt 7 of the Act. Division 4 is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to matters it deals with:  Act, s 422B. In applying Div 4, the Tribunal must act in a way that is fair and just:  Act, s 422B(3).

35    Section 424 of the Act provides that in conducting the review, the Tribunal “may get any information that it considers relevant”. Section 426(2) makes provision for a review applicant to give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. Section 426(3) provides that if the Tribunal is notified by an applicant under subs (2), it must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from the person named in the notice. Consistent with that language, the appellant acknowledged that the Tribunal was not obliged to hear oral evidence from every witness in every case at a review applicant’s request.

36    In Maltsin Kenny and Lander JJ (Spender J agreeing) explained the obligation of the Tribunal in the context of a review conducted under Pt 5 of the Act. Section 361(3) was contained in Pt 5 and was in relevantly the same terms as s 426(3). Their Honours said:

37    It is in keeping with the tribunal’s inquisitorial nature that the tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the tribunal to take oral evidence from anyone other than the applicant.

38    It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s 361(3), the tribunal is obliged to have regard to any notice given by an applicant under s 361(2) or (2A) of the Act. This means that the tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. As the respondents’ counsel said, the authorities establish that the invitation to appear before the tribunal must be ‘real and meaningful and not just an empty gesture’:  NALQ at [30]; SCAR at [37] and Mazhar at [31]. It follows that the consideration that the tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (cf W360/01A v Minister for Immigration and Multicultural Affairs (2002) 124 FCR 449; [2002] FCAFC 211 (W360/01A) at [2] per Lee and Finkelstein JJ and [30]–[32] per Carr J), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the tribunal. These considerations flow from the nature of the tribunal’s overarching objective, which is to provide a review that is ‘fair, just, economical, informal and quick’:  see s 353(1). The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

37    Kenny and Lander JJ went on to conclude that the Tribunal had failed to discharge its obligation to give genuine consideration to the review applicant’s request that it hear oral evidence from his friends and family and so breached is statutory obligation under s 361(3) (at [47] – [48]). That error was in addition to a breach of the rules of procedural fairness occasioned by the hasty manner in which the hearing was conducted. Among other things, the Tribunal limited the oral evidence not by reference to relevant considerations (such as the importance of the proposed evidence for the review or the time the review applicant might reasonably require to present his case) but instead conducted the hearing in a hasty manner “with an eye principally on the clock” (at [47]). Those errors were material because of the findings the Tribunal went on to make about the credibility of the witnesses (each of whom attested to the genuineness of a relationship between the review applicant and his partner). Kenny and Lander JJ went on to say (at [52]):

… the tribunal found that certain persons, some of whom who gave corroborative evidence, were deceitful, notwithstanding that the tribunal found that Mr Maltsin and Ms Bogodist presented themselves as a couple to their friends (see [17], above) and at least one friend (Mr Conrad) was not permitted to give oral evidence. It was, of course, open to the tribunal to determine the weight to be given to the letters and declarations to which it referred and to reject the corroborative evidence of friends and family on the basis that it rejected the evidence of Mr Maltsin and Ms Bogodist (always providing that jurisdictional error was not otherwise involved). It was, however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.

38    The material before this Court on appeal shows that in advance of the hearing the appellant gave written notice (presumably under s 426(2) of the Act) that he wanted to hear oral evidence from Ms D and that he had not obtained any written evidence from her in advance of the hearing.

39    The Tribunal considered the request and explained its reasoning for rejecting it in the following terms:

83    …  The Tribunal expressed concern about taking evidence in circumstances where there was no statutory declaration or statement from [Ms D] or any way of independently verifying the identity of the witness before the hearing. The applicant maintained he provided a copy of her passport to the Tribunal. The Tribunal was unable to locate [Ms D’s] passport or other identity documents on the file.

84.    As discussed with the applicant at the hearing the applicant was advised by the Tribunal in correspondence dated 6 July 2018 that the file was being prepared for allocation to a member and may result in a hearing. The letter specifically advised the applicant to provide any additional evidence relevant to his application as soon as possible. The Tribunal also notes that it had agreed to the applicant’s multiple requests for extensions of time to delay listing the matter for hearing to enable him to prepare his application. In the circumstances the Tribunal is concerned that the applicant did not obtain any evidence from [Ms D] in support of the application. The Tribunal did however agree to give the applicant time to obtain a statement from [Ms D] after the hearing.

40    The Tribunal was plainly alive to the centrality of Ms D’s intentions to the resolution of the appellant’s claims. It is reasonable to infer that it had that centrality in mind when it afforded the appellant the opportunity to provide written evidence from Ms D, together with written submissions. There may be cases in which, having initially rejected a request to hear oral evidence from a person, the Tribunal may be obliged to re-consider the request having proper regard to the nature and content of evidence later given in writing by that person, assessed in light of the issues to be determined.

41    I do not consider this to be such a case.

42    Ms D’s letter is to be considered as a whole. It is extracted in large part here:

It was the 15th of September 2010. [redacted] called me and out of the blue proposed me and invited me to stay with him at his home. I was not accepting this at all, but I did liked him and was hesitant to express my feelings due to the noticeable difference in our ages. I gladly accepted his proposal, and in spite of the disapproval by my daughter and [redacted], I moved in with [redacted]. I was on cloud nine, the gloomiest part of my life miraculously turned into the brightest one.

On the other hand, [redacted] uncle [redacted] strongly disapproved our relationship, and he and [redacted] shared a residential lease, and it became our compulsion to live with him. The plot thickened when my daughter and her boyfriend allied with [redacted] to force us to separate. We were emotionally blackmailed into breaking our relationship. Since there was no neutral territory, we faced extreme humiliation, and they deemed our relationship as a fetish arrangement.

This can be assessed from the fact that on 03/12/2010 my daughter [redacted] married [redacted] in Darwin and I wasn’t invited to attend her wedding just because I am committed to be with [redacted]. Indeed, it was one of the most painful moments of my life. However, no one can force me to break my relationship with [redacted].

On 24/02/2011 I returned to India for my ongoing divorce matter. On 28/02/2011 my divorce was finalised; however, it took several months to change my surname and obtaining a new passport.

Therefore, as a last resort, [redacted] and I maintained our relationship over the phone, and due to his adverse immigration status, he could not sponsor me as his spouse to Australia. However, both my daughter and [redacted] uncle changed their opinion about our relationship in around the mid of 2012, and I went to Australia on 26/07/2012, it was a weepy reunion and stayed with [redacted] till 22/10/2012 and returned on 25/10/2012 this time I stayed with him for another three months. I returned to Darwin on 20/03/2013 and stayed till 05/06/2013.

Since I returned to India I started working to establish my business to support myself and [redacted]; however, with minimal capital, it took way longer than predicted to generate profits. I was barely making ends meet. Moreover, adversities that [redacted] faced stemming from his immigration matters are not unknown, from 22/04/2014 till 29/12/2016 he was not allowed to work under his bridging visa E condition. On 26/09/2017 he was severely injured in a motor vehicle accident; it was excruciating for us in that time of need to be separated merely due to his immigration problems and our poor financial status. However, nothing can change my love for him including distance and time.

It is dreadful to imagine relocating to either Pakistan or India, speaking of transferring to India, I would like to bring to your attention that I belong to a conservative Hindu-Jat family which is highly intolerant as far as marrying their daughter out of their caste is concerned and if it is a Muslim that too Pakistani the opposition goes in geometrical proportion. It is unimaginable that a couple could survive if it is against community norms. It is not the Jat community in particular but the whole Indian society, in general, is prejudiced against the Hindu-Muslim alliance. They would prefer to kill their daughter than to marry her to a Muslim. However, in spite of all adverse circumstances I will never break up with [redacted], and I am determined to be with him whatsoever, I have committed myself to him, and I will spend rest of my life with him. Our profound love is unshakable and has stood the test of time and distance. But words are not enough to do justice in expressing my emotions and every detail of our relationship. Therefore, if you require any further information or clarification, please do not hesitate to contact me and if it is needed, I am available to testify at the Australian High Commission in New Delhi, India.

43    Contrary to the appellant’s submissions, the letter from Ms D did not state an intention on her part to marry the appellant in the foreseeable future, whether in Australia, India, Pakistan or elsewhere. The letter confirms that Ms D and the appellant had lived apart since 2013. The letter advances a number of cultural and attitudinal reasons as to why her marriage to a Muslim man was problematic for her as a Hindu woman from India.

44    The Tribunal accepted everything Ms D had said about the history of the relationship. It accepted her evidence concerning the nature and duration of her emotional connection with the appellant. The Tribunal was correct to conclude that Ms D did not state that her commitment to the appellant was such that she intended to marry him in the foreseeable future.

45    As to credit, the Tribunal’s findings do not involve a rejection of Ms D’s account, nor do they depend on a finding that she was a dishonest or deceitful witness:  cf Maltsin. Rather, it identified multiple bases for rejecting the appellant’s claim to fear harm in Pakistan on the basis of the relationship, including his failure to make the claim based on the asserted fear at an earlier time.

46    The rules of procedural fairness did not require Ms D to be afforded an opportunity to give oral evidence for the purpose of responding to concerns about her credibility as a witness:  the reasons of the Tribunal reveal no such concerns.

47    Nor was the Tribunal obliged to obtain further evidence from Ms D in order to fill any perceived gap in the materials provided to it by the appellant. The appellant was plainly on notice of the issues to be determined by the Tribunal and it has not been demonstrated that he was deprived of a fair opportunity to obtain evidence from Ms D and to present it to the Tribunal. As emphasised in SZIAI, the Tribunal does not have a general duty to conduct an inquiry so as to obtain material that may support a review applicant’s claims. The circumstance that the evidence of Ms D did not assist the appellant’s case on a critical issue was not occasioned by any failure on the part of the Tribunal to conduct a hearing that was just and fair.

48    The appellant’s reliance on Gherga in support of contentions on this issue is misguided. In that case, Kiefel J (as her Honour then was) held that a review applicant had been misled by the Tribunal as to whether there was a need to call witnesses on a discrete and contentious topic. The review applicant had been denied procedural fairness in that limited respect. Kiefel J concluded that the denial deprived the review applicant of a successful outcome because evidence from the witnesses might have drawn the Tribunal’s attention to a topic that under the statutory regime it was obliged to address. The reasoning in Gherga does not assist the resolution of the different questions arising before me.

LEGAL UNREASONABLNESS

49    The arguments founded on legal unreasonableness and illogicality concerned the Tribunal’s substantive factual findings, rather than the manner in which it exercised its procedural discretions. The impugned factual findings are those made by the Tribunal in the first five dot points of [98] of its reasons (extracted at [15] above). The complaint extends to the Tribunal’s observation (made at [101] of its reasons) that the appellant had provided no details about his parents having arranged for him to enter a “forced marriage” if he returned to Pakistan.

50    The power of the Minister to grant or not to grant a visa under s 65 of the Act is preconditioned by the Minister forming the state of satisfaction (or non-satisfaction as the case may be) as to whether the conditions for the grant of the visa are fulfilled. Jurisdictional error may be demonstrated if the formation of that state of mind is based on a factual finding (materially bearing on the outcome) that is illogical or irrational, or unsupported by probative material. In such cases, that the lawful formation of the state of mind does not exist:  Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at [23] – [24]); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12, Gummow and Hayne JJ (at [37] — [38]); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 367 — 368).

51    To establish illogicality or irrationality it must be shown that the decision “is one at which no rational or logical decision maker could arrive on the same evidence”:   SZMDS, Crennan and Bell JJ (at [130]); see also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (at [29] – [35]) and the cases there cited. As Wigney J observed in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 (at [55]) (in a passage approved by the Full Court in Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal:  SZRKT at [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error:  SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result:  Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out:  SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

52    The appellant submitted that it was plainly not possible for him and Ms D to make any plans to marry in any place. His written submission on that topic was that marrying in Pakistan or India would require them to be in one of those countries, which is largely impossible. It was submitted that marrying in Australia was “problematic when the appellant had no viable visa status in Australia” and that “a woman is entitled to have some certainty in that regard”.

53    The appellant submitted that the assessment of whether he had a well-founded fear of persecution if returned to his home country involved a predictive assessment of what might occur in the future. He submitted that the Tribunal was required to assess, “what would happen to him if he were to return to Pakistan with a divorced Hindu wife and claim to set up his life there. Or what would happen if he sought to bring [Ms D] to Pakistan and marry her there. Would he be free from persecution in the short, medium or long term”.

54    The submission that the Tribunal was required to make an assessment of what might happen in the reasonably foreseeable future is correct. In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, Mortimer J said this of the “well-founded” aspect of the refugee definition then expressed in Article 1A of the Convention Relating to the Status of Refugees (now enacted in similar terms in s 5H and s 5J of the Act) (at [60]):

The ‘reasonably foreseeable future’ is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the ‘well-founded’ aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical ‘on the ground’ circumstances she or he will be living in. Using ‘reasonably foreseeable’ also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.

55    In assessing what might happen in the reasonably foreseeable future, the Tribunal was entitled to be guided by past events:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

56    The difficulty for the appellant is that the future assessment he asserts the Tribunal ought to have made was founded on the factual scenario that Ms D would accompany him to Pakistan and cohabit with and/or marry him there. The subjective fear of persecution was founded on either of those events occurring.

57    The fact that the appellant and Ms D had not in fact married or made plans to marry over the course of a relationship spanning many years was plainly a relevant circumstance in assessing whether they might marry in the foreseeable future. The Tribunal’s reasoning on that topic assumes that it was was possible for the appellant and Ms D to marry (or at least make plans to marry), notwithstanding that the appellant’s immigration status was unresolved. That assumption has not been shown to have been illogical or irrational on the material before the Tribunal. The Tribunal’s conclusion that the appellant and Ms D would not marry in the foreseeable future was open to it, such that it could not be satisfied that there was not a real risk or real chance that the feared harm would transpire.

58    As to the asserted fears concerning a forced marriage, it may be accepted that the appellant could hardly be expected to have revealed the existence of his relationship to Ms D to his parents, so as to create an occasion for his parents to issue any actual threats concerning his forced marriage to another person. I accept the submission that there is some illogicality affecting the Tribunal’s evaluation of that issue, to that limited extent. However, the fact remains that the forced marriage scenario raised by the appellant was one based on an asserted future scenario in which Ms D relocated with him to Pakistan to (at least) cohabit with him there. Accordingly, I do not consider the identified illogicality to be material. The finding that Ms D would not relocate to Pakistan in the foreseeable future was dispositive of the claims found on a forced marriage. For the reasons already given, that finding was not affected by jurisdictional error of the kind alleged.

59    I emphasise that on this appeal it was not submitted that the appellant’s return to Pakistan would result in him being separated from Ms D in circumstances that would give rise to psychological or other harm capable of fulfilling either the refugee criterion or the complementary protection criterion. Whist at times it was submitted that the Tribunal asked itself the wrong question, the appellant’s submissions did not invite this Court to consider the apparent tension in the Full Court judgments to which the primary judge referred. Nor has it been necessary to assess whether the primary judge erred in rejecting the fifth ground for judicial review at first instance, to the extent that it was based on a “separation” scenario.

60    In light of the above conclusions, none of the grounds of appeal agitated before me has been established.

61    It follows that the appeal should be dismissed.

Associate:

Dated:    11 March 2022