Federal Court of Australia

DZT20 v Minister for Immigration and Multicultural Affairs [2025] FCA 286

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants must pay the first respondent's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). The application before the Circuit Court was for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse protection visas to the appellants.

2    The appellants are a family unit from the province of Punjab in Pakistan. The first appellant entered Australia in 2011, and then returned to Pakistan and came back to Australia twice after that. He appears to have held a student visa which authorised his entry to Australia on those occasions. The second appellant came to Australia in 2014 as a dependent spouse on the first appellant's student visa. The first appellant applied for a protection visa later in the same year (October 2014). The third appellant, the first and second appellants' daughter, was born in Australia in 2015.

3    The appellants sought (and seek) protection visas as a family unit. The second and third appellants' protection claims depend entirely on the outcome in respect of the first appellant.

Adjournment application

4    I heard the appeal on 6 March 2025. The appellants did not have legal representation and only the first appellant appeared at the hearing (he was appointed to act as litigation representative for his daughter). While he seemed to have some understanding of English, he appeared with the assistance of an Urdu interpreter.

5    During the course of the first appellant's oral submissions he indicated that, two days earlier, he had attended a consultation with Circle Green Community Legal. According to the first appellant, he was told that Circle Green would review his protection visa case and would probably be able to give him a lawyer. He said (to me) that he could not afford to pay for a lawyer and also that he felt that he needed someone with legal knowledge to represent him because he did not have the expertise.

6    Although the first appellant did not say so outright, I interpreted these submissions as a request to adjourn the hearing of the appeal so as to give the appellants an opportunity to secure legal representation through Circle Green. The first appellant agreed with this interpretation. The Minister opposed the application for an adjournment, and after hearing submissions from counsel for the Minister and from the first appellant, I refused to adjourn the hearing. I said I would explain why in these published reasons.

7    It is convenient to repeat a summary of the principles applicable to adjournment applications in such circumstances which I gave in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute 'right' to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

8    In this case, as the first appellant himself properly acknowledged, his request for legal assistance was made very late. There had been four previous emails from my associate to the parties, which the Minister tendered into evidence, making it clear that the matter was listed for hearing on 6 March 2025. The first of these, notifying the parties of the listing of the appeal for hearing, was sent on 21 January 2025. The first appellant responded to those emails on two occasions asking for an interpreter at the hearing, but said nothing about legal assistance. This shows that he understood what the emails said, and it also suggests that his decision to seek legal assistance was made more recently than his replies. Although I am prepared to accept the first appellant's statements from the bar table that he did not have the financial resources to engage a lawyer, he offered no explanation for why he only sought pro bono assistance two days before the hearing, of which he had been on notice since late January 2025.

9    In addition, and once again even after receiving statements of fact made from the bar table, the first appellant did not persuade me that there would be any utility in adjourning to give him more time to try to seek legal representation. He confirmed that he had told Circle Green of the date of the hearing, so his account of their advice as being simply that they would probably be able to give him a lawyer is unlikely to be accurate, or at least is unlikely to be complete. Any responsible lawyer approached by someone in the first appellant's circumstances two days before the hearing of the appeal would either advise him to apply for an adjournment (or perhaps offer to represent him on that application themselves) or say that they could not help him. As far as one can tell from what the first appellant said, Circle Green did neither. Nor was there any information from which the Court could conclude that Circle Green thought that any arguable grounds of appeal could be raised.

10    Adjourning the appeal hearing would have led to waste of the public resources of the Court and of the Minister. It would have led to delay and inefficiency that would have been inconsistent with the objectives of the civil practice and procedure provisions as embodied in s 37M of the Federal Court of Australia Act 1976 (Cth). And there was no sound basis to think that adjourning would secure legal representation for the appellants, or that any such representation would have resulted in an arguable case being put on appeal. Those matters, together with the strong discretionary reason afforded by the first appellant's apparent unexplained delay in seeking representation, led me to refuse the application to adjourn.

11    I will now describe the relevant aspects of the Tribunal's decision and of the Circuit Court's decision, before considering the merits of the appeal.

The Tribunal's decision

12    The Tribunal conducted two hearings in the course of its review of the delegate's decision to refuse to grant protection visas.

13    The Tribunal described the first appellant's protection claims as not particularised and somewhat difficult to discern. As best the Tribunal could tell, the first appellant was claiming that he had been a member of the student wing of the Pakistan People's Party (PPP), that he had been politically engaged prior to 2005, and that he had briefly been arrested and detained during a political protest in or around 1999. After graduation, he was briefly a full member of the PPP. He claimed that while employed in Pakistan between 2006 and 2010 he had experienced harassment and intimidation from persons associated with the rival Pakistan Muslim League Nawaz Party. This was said to have occurred particularly at election times. Members of the first appellant's extended family were also said to have experienced harassment and intimidation.

14    The Tribunal characterised the first appellant's claims and the evidence supplied in support as 'unreasonably vague, internally inconsistent and lacking in credibility in material respects' (para 26). It found his claims to lack supporting evidence, where he may have been able to obtain such evidence.

15    The Tribunal was concerned by the fact that the first appellant delayed applying for a protection visa until October 2014, despite having first come to Australia in 2011 and despite claiming to have feared persecution in Pakistan no later than 2008. It found that he had provided no reasonable explanation for the delay.

16    The Tribunal was also concerned that first appellant's claims arose from events which were said to have happened before the first appellant came to Australia for the first time in 2011, and yet he had returned to Pakistan on two occasions after that. There were other concerns that need not be described.

17    Ultimately, the Tribunal found that the first appellant was a low-level supporter of the PPP in Pakistan prior to 2008, and that during that time he experienced a low-level of discrimination and harassment for that reason. But at some point between 2008 and 2011, he ceased to be involved in politics in Pakistan 'at any level' (para 78) and by the time he came to Australia in May 2011, 'he feared no harm from any person for any reason' in Pakistan (para 78).

18    On the basis in part of the concerns mentioned above, the Tribunal found that the first appellant's 'claims for protection are lacking in credibility and without merit' (para 79). It found that the appellants did not hold a genuine subjective fear of persecution in Pakistan for any reason. It therefore found that they did not meet the refugee criterion for the grant of a protection visa in s 36(2)(a) of the Migration Act 1958 (Cth) (as it stood in 16 October 2014), which imported into Australian law the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Also, on the basis of the same credibility findings, the Tribunal was not satisfied that the appellants were persons to whom Australia owed protection obligations under the complementary protection criterion found in s 36(2)(aa) of the Migration Act.

The proceeding in the Circuit Court

19    The appellants did not have legal representation in the Circuit Court. But they were able to advance six grounds of review. It is not necessary to set all those grounds out; as will be seen, only two of them are reflected in the grounds of appeal. One of them was an unparticularised claim that the Tribunal had misconstrued or misapplied s 36(2B)(c) of the Migration Act. Five of them alleged that the Tribunal had denied procedural fairness in various ways, or at least were capable of being understood as making allegations of that kind.

20    One of the grounds that appeared to concern procedural fairness also invoked United Nations conventions, as follows:

5.    AAT member made judicial error and ignored UN CONVENTION on refugee rights and children rights, as applicant daughter have some delays in her life and have all doctors' reports but because of AAT member aggrieve behaviour towards applicant cant discus their as applicant got very nervous and stress full after AAT member behaviour.

21    This contention about the Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990), appears also to be made on appeal.

22    The other ground of review in the Circuit Court which appears to be reflected in the grounds of appeal was:

6.    AAT member ignored criteria of protection visa made judicial error that AAT must listen all of applicants claims and give applicants comfortable environment to discuss everything, but this member put a lot of pressure on us.

23    In relation to the other grounds, which I have briefly described, the primary judge went through each one carefully and explained why, in her Honour's view, it had not been made out. In relation to claims that the Tribunal had denied procedural fairness by the manner in which it had conducted the hearings, her Honour read the transcript and listened to the audio recordings of the hearings, and held that they fell well short of establishing bias. No error is alleged in her Honour's treatment of these grounds and, with respect, none is apparent on the face of the judgment.

24    The primary judge's review of the transcript and audio recordings also led her Honour to dispose of one aspect of ground 5 set out above, which can be understood to contend that aggressive behaviour on the part of the Tribunal member prevented the first appellant from putting a case in reliance on the Convention on the Rights of the Child. Her Honour's treatment of this aspect of the ground is not the subject of appeal.

25    What is the subject of appeal, however, is the impact on the Tribunal's review, if any, of the Convention on the Rights of the Child. In that regard her Honour recorded that the Tribunal had confirmed with both the first and second appellants that their daughter, the third appellant, advanced no claims for protection of her own, and relied solely on the claims of the first appellant. Her Honour found that no claims about the third appellant's health were raised with the Tribunal and there was no obligation on the Tribunal to consider any such claims. In any event, her Honour held (at [66]):

The issue for the Tribunal was whether the applicants met the criteria for a protection visa in s 36 of the Migration Act. This did not require the Tribunal to consider the best interests of the child or any other matter arising from [the Convention on the Rights of the Child]. There was no obligation on the Tribunal to consider [the Convention on the Rights of the Child] in reaching its decision.

26    As for ground 6, her Honour first disposed of the aspect of the ground which seems to allege that the Tribunal failed to listen the appellants' claims, failed to give them a 'comfortable environment to discuss everything', and put a lot of pressure on them. Having reviewed the transcripts and listened to the audio recordings, her Honour found that those allegations were not made out. Once again that is not challenged on appeal.

27    As for the aspect of ground 6 concerning the Tribunal's alleged ignoring of the criteria for protection visas, relevantly to the appeal the primary judge noted that the Tribunal was not satisfied that the appellants held a subjective fear of persecution on return to Pakistan, so that no further analysis as to the refugee criterion in s 36(2)(a) of the Migration Act was required. Her Honour relied on Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [29] in that regard.

28    As for the complementary protection criterion in s 36(2)(aa) of the Migration Act, the primary judge noted that the Tribunal found that the appellants did not face a real risk of significant harm for the purposes of the complementary protection criteria in s 36(2)(aa) of the Migration Act. Her Honour considered (at [74]) that this 'conclusion flowed from the Tribunal's findings that the only harm the first applicant had experienced was a low level of harm and discrimination as a PPP supporter prior to 2008, and that he had no intention of being involved in party politics in the future'.

29    Her Honour was satisfied that the Tribunal had considered all the relevant provisions in the Migration Act and that this ground of review was not established.

The grounds of appeal

30    The notice of appeal sets out grounds of appeal, expressed as if given in an affidavit by the first appellant, as follows:

1.    I am applicant for refugee visa review decision and I am authorised to make this affidavit as a primary applicant requesting review of the decision.

2.    I would like to bring your attention that I am genuine refugee and want to request you to please review my whole file.

3.    My daughter third applicant DZV20 born in Australia seven years ago on 9th of July 2015, according to UN Convention on the Rights of the Child, her safety, health and education issues been ignored while making a decision. Article 3 of the Convention states that:

1.    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

4.    36.2 ACT 1958 has been ignored while making a decision.

31    Paragraph 2 of this misunderstands this Court's function. It is deciding an appeal by way of rehearing from the Circuit Court's decision, and so can only act if it identifies error in that decision. It will not conduct a review of the appellant's whole file.

32    I interpret the third paragraph as a contention that the primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error by ignoring the interests of the appellants' daughter, this being required under the Convention on the Rights of the Child. This corresponds to ground of review 5 in the Circuit Court, as described above.

33    I interpret the final paragraph as a contention that the primary judge erred in failing to find that the Tribunal had disregarded the statutory criteria for the grant of a protection visa that are found in the Migration Act. That must be the 'ACT 1958' referred to in the paragraph, and '36.2' appears to refer to s 36(2), where those criteria are found. In oral submissions the first appellant was unable to shed any light on what was meant by this ground. However, those inferences are supported by the way that a similar contention appeared to have been made in ground of review 6 in the Circuit Court, also described above.

Disposition of the appeal

34    The appellants did not file any written submissions and the first appellant did not make any substantive oral submissions at the appeal hearing. The Court is left with the two grounds of appeal as described above, the corresponding grounds of review in the Circuit Court and the primary judge's treatment of those grounds.

35    As for the first ground of appeal, for the reasons the primary judge gave her Honour was correct to conclude that the Tribunal was not under any obligation to follow the Convention on the Rights of the Child when deciding whether to grant protection visas to the appellants. The Tribunal was not exercising a discretion; it was deciding whether the material before it satisfied it that statutory criteria of fact were satisfied. There was therefore no room for it to take into account the best interests of the appellants' Australian citizen child: see SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] (Griffith J).

36    As to the second ground of appeal, once again the primary judge was correct for the reasons that her Honour gave. The Tribunal simply did not believe that the first appellant had a subjective fear of persecution on return to Pakistan, which was enough to negative the refugee criterion in s 36(2)(a) of the Migration Act. Iyer at [29] is indeed authority supporting the proposition that once the Tribunal had determined that the first appellant did not subjectively hold a fear of persecution for Convention reasons on return to Pakistan, there was no need to determine whether any factual occurrences on which he relied provided an objective basis for any such fear.

37    Nor was the Tribunal satisfied that the first appellant or his family faced a real risk of significant harm for the purposes of the complementary protection criterion in s 36(2)(aa) of the Migration Act. For the Tribunal went further than to find that the first appellant had no subjective fear of harm. It found more broadly that his claims for protection were 'lacking in credibility and without merit' (para 79). Consistently with the primary judge's reasoning, that finding must in turn have been informed by the Tribunal's earlier findings that the first appellant experienced a low level of discrimination and harassment, but that at some point between 2008 and 2011 he ceased to be involved in politics in Pakistan at any level.

38    The Tribunal expressly based its conclusion as to complementary protection on those credibility findings. The appellants have advanced no reason why the Tribunal's findings of fact in that regard involved jurisdictional error, and nor is any such reason apparent on the face of the Tribunal's decision. To the extent that they contend that the criteria in s 36(2) of the Migration Act have been ignored, that contention is unsustainable.

39    Neither of the grounds of appeal is upheld. The appeal will be dismissed, with costs.

Associate:

Dated:    31 March 2025