FEDERAL COURT OF AUSTRALIA WZAVC v Minister for Immigration and Border Protection [2017] FCA 925 Appeal from: WZAVC v Minister for Immigration and Border Protection & Anor [2017] FCCA 314 File number: WAD 153 of 2017 Judge: BARKER J Date of judgment: 11 August 2017 Catchwords: MIGRATION – application for protection (class XA) visa – appeal from Federal Circuit Court of Australia – whether primary judge erred in failing to find jurisdictional error in decision of Tribunal – where appellant seeks to raise new grounds on appeal Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 91R(1)(a), 424AA Cases cited: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 379; [1989] HCA 62 Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; [1996] HCA 6 Moussa v Minister for Immigration and Border Protection [2016] FCA 1403 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 SZFNX v Minister for Immigration and Citizenship [2010] FCA 562 SZTKV v Minister for Immigration and Border Protection [2014] FCA 903 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 WZAVC v Minister for Immigration & Anor [2017] FCCA 314 Date of hearing: 11 August 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 65 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms E Tattersall Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS WAD 153 of 2017 BETWEEN: WZAVC Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BARKER J DATE OF ORDER: 11 AUGUST 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, to be assessed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa. 2 The appellant, who was born on 3 December 1987, is a male citizen of Pakistan and of Muslim faith. He arrived in Australia on 15 July 2008 on a subclass 572 student visa and was granted a further student visa on 2 November 2010. His student visa was cancelled on 10 June 2011. He has been granted a number of bridging visas since then. 3 The appellant applied for a protection (class XA) visa in August 2012. In his application, he claimed to be from a middle class Muslim family and to belong to an area in Pakistan affected by militant activities. He further claimed there were many attacks by militants while he was in Pakistan, and the police and local army were unable to catch those responsible for the attacks because they mostly used hand grenades or "human bombs". 4 The appellant said that if he returned to Pakistan, he would be forcefully asked to join the militant groups, and if he refused to join, he would be killed. 5 The appellant added that the local authorities in Pakistan are corrupt and did not take these types of cases seriously. He said there is no protection he can receive from the local authorities in Pakistan, as the authorities themselves are helpless and he did not trust them. 6 The appellant's application for a protection visa was refused by a delegate of the Minister on 19 August 2013. On 30 October 2014, the Tribunal affirmed the delegate's decision under review. 7 The appellant then applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 28 February 2017, the primary judge held that the Tribunal's decision was not affected by jurisdictional error and dismissed the judicial review application. See WZAVC v Minister for Immigration & Anor [2017] FCCA 314. 8 The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 22 March 2017. The grounds of his appeal are set out and further considered below. delegate's decision 9 The delegate noted that the appellant's protection visa application failed to clearly specify the harm or mistreatment he feared if he were to return to Pakistan in the reasonably foreseeable future. The delegate was further unable to test the appellant's claims as the appellant failed to attend his interview on 7 May 2013. The delegate was ultimately not satisfied that the appellant feared harm for a Convention reason. 10 The delegate considered the appellant's delay in making his application for more than two years since arriving in Australia suggested that he had not been fleeing Convention-related persecution in Pakistan. In reaching this conclusion, the delegate noted that the period between an applicant's arrival in Australia and the time of claiming refugee status is a legitimate matter to be taken into account when assessing the genuineness or depth of the applicant's fear of persecution. 11 The delegate found that the elapsed time between the appellant's arrival and the lodgement of his application, together with his failure to attend his protection visa interview, supported a finding that his fears of persecution for a Convention reason were insubstantial. 12 For these reasons, the delegate was not satisfied that a Convention ground was the essential and significant reason for the harm feared, as required by s 91R(1)(a) of the Migration Act 1958 (Cth). Accordingly, the delegate was not satisfied that Australia had protection obligations to the appellant and found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act. 13 The delegate was also not satisfied the harm claimed by the appellant constituted significant harm for the purposes of s 36(2A) of the Act, as the appellant had not specified in his written application the harm or mistreatment he feared if he returned to Pakistan, and further failed to attend his interview on 7 May 2013. 14 As there was no evidence that the appellant feared significant harm if he were to return to Pakistan, the delegate did not consider whether or not there were substantial grounds for believing that there was a real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan. 15 Consequently, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act. tribunal's decision 16 The appellant was unrepresented at the hearing before the Tribunal on 5 September 2014. 17 At the hearing, the appellant claimed he was abducted on 2 December 2012 when he returned to Pakistan. The Tribunal noted this new claim was not previously raised in his protection visa application. 18 The Tribunal stated the appellant claimed to be on a motorbike when three masked men in a car pulled up beside him, pointed a gun at him and forced him to get into the car. The appellant said he was drugged unconscious and taken to a camp, where he was asked if he came from Australia and was told to contact his family to demand money. The appellant said that when he told the men he was a student and his family could not afford to pay the money, the men beat him. 19 According to the Tribunal, the appellant claimed he attempted to escape from the camp in the following days, but was unable to because there were guards standing outside the door. The appellant claimed he eventually managed to escape with three people and ran for 7 km to a village and walked a further 9 km to the town of Rawalpindi. 20 The appellant said he took a taxi from Rawalpindi to his uncle's house and his uncle called his mother to take him home. He stated that his mother had lodged a First Information Report (FIR) with the police on 2 December 2012, but when he went to the police station and informed them about the camp, the police refused to help him. The appellant provided copies of the FIR made by his mother to the Tribunal in support of his evidence. 21 The appellant added that his brother received threatening phone calls because he had helped other people escape from the camp. The appellant said he returned to Australia after the incident. 22 The Tribunal had a number of concerns about the appellant's evidence, which led the Tribunal to find that the appellant had not been truthful in his claims about his experiences in Pakistan and his fears about returning to Pakistan. 23 The Tribunal ultimately found the appellant's evidence regarding the abduction lacking in credibility and considered his delay in applying for a protection visa to be a relevant factor in assessing the credibility of his claims. The Tribunal noted that despite being abducted in December 2010 and returning to Australia on 29 December 2010, the appellant did not apply for a protection visa until August 2012. 24 At the hearing, the Tribunal noted to the appellant that he did not present any evidence about his purported abduction at his hearing before the Migration Review Tribunal (MRT) or interview regarding his student visa cancellation. The Tribunal stated that after a short adjournment, the appellant said he did not mention the abduction previously because he was very confused when he appeared before the MRT and was experiencing family problems. 25 The Tribunal then referred the appellant to his protection visa application and noted he failed to provide any evidence about his abduction in support of that application. The appellant responded that he was mentally stressed, had no family support or lawyer, and did not know what to do. 26 When asked, at the hearing, why he did not attend his protection visa interview, the appellant said he was unwell and had no work rights, social life or friends. The appellant also explained that he did not apply for a protection visa sooner because he was unaware that he could. The Tribunal did not accept this evidence and stated that his migration history suggested he was aware of his migration options, noting that the appellant had been in Australia since 2008, applied for two student visas, appeared before the MRT and received Department correspondence regarding visa options. 27 As to the FIR provided in support of the appellant's evidence, the Tribunal did not give the FIR any weight in assessing the appellant's claims, in light of country information about the prevalence of document fraud in Pakistan and its concerns about the veracity of the appellant's evidence and claims. 28 The Tribunal did not accept the appellant's claims that he feared returning to Pakistan because of a militant group operating in his local area and that he feared he will be forced to join the militant group and be killed if he resisted. 29 The Tribunal further did not accept the appellant's new claims regarding his abduction in December 2010 and that he was drugged, detained and beaten, and that his family was told to pay a ransom to secure his release. The Tribunal also did not accept that he was in danger from the militia because he helped two prisoners escape. 30 The Tribunal found the appellant's evidence vague, unconvincing and lacking in credibility. The Tribunal found there was no evidence to support the claim he will be forced to join the militant group and killed if he resists. The Tribunal found the appellant was not threatened or abducted by a militant group in Pakistan, and therefore found he would not face harm from the militia if he returned to Pakistan in the reasonably foreseeable future. 31 For these reasons, the Tribunal found that the appellant did not have a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future if he returned to Pakistan. 32 The Tribunal was also not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there would be a real risk that he would suffer significant harm. 33 The Tribunal concluded that the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and so affirmed the delegate's decision not to grant the appellant a protection visa. judicial review in the federal circuit court 34 In his application for review of the Tribunal's decision filed 24 November 2014, the appellant raised the following grounds: 1. The tribunal does not review the application based on compassionate circumstances. 2. The procedure is too quick. I do not have the second chance to provide more evidence. 3. The tribunal think it is not genuine to my evidence document but the tribunal did not communicate with any authority to confirm evidence documents. 35 The primary judge noted that, at the hearing, the appellant requested more time to provide evidence because of his financial hardship. The primary judge said that, insofar as the appellant's comments might be construed as an adjournment application, it should be refused. 36 In refusing the adjournment application, the primary judge had regard to the fact that the protection visa application was made approximately three years prior to the hearing and the appellant had five months from the filing of the judicial review application to obtain material in support of his application, but had failed to do so. 37 The primary judge also noted that the appellant gave no explanation as to why he waited until the hearing, which had been listed for two months, to make the adjournment application, beyond his general submission that he had "financial difficulties". The appellant provided no further evidence on his "financial difficulties" and why they prevented the advancing of his case. Additionally, the primary judge said, the appellant provided no evidence as to what material would have been provided in support of the judicial review application had the adjournment been granted. 38 In all the circumstances, the primary judge concluded, the adjournment application was devoid of merit and should be refused. 39 As to ground one of the appellant's judicial review application, being that the Tribunal failed to undertake the review on 'compassionate circumstances', the primary judge said this was no more than a plea for impermissible merits review and must therefore fail, referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; [1996] HCA 6. 40 The primary judge found that the Tribunal was required to review the delegate's decision in accordance with the Act, and in this regard, was not required to be compassionate. The primary judge considered the Tribunal had done the following (footnotes omitted): a) set out in the Tribunal Decision i) the relevant criteria for the Protection Visa; ii) the complementary protection criteria; and iii) the requirement that the Tribunal consider PAM3, being a policy guideline prepared by the Department; b) applied the criterial and requirement in (a) above to the applicant's claims; c) considered all of the claims raised by the applicant and made findings of fact that were open to it: Re Minister for Immigration & Multicultural & Ors; Ex parte Cohen [2001] HCA 10; (200) 75 ALJR 542; (2001) 177 ALR 473 per McHugh J; and d) made credibility findings which are findings of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, and although they do not thereby operate as a shield to protect the Tribunal's decision-making process from scrutiny: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J, it is plain enough that in this case the Tribunal knew and understood the principles concerning the assessment of the evidence and materials before it, and carried out its functions in relation thereto in orthodox terms. 41 In all of the above circumstances, the primary judge said, ground one does not establish jurisdictional error. 42 As to ground two of the appellant's judicial review application, being that he was denied a 'second chance' and the procedure before the Tribunal was 'too quick', the primary judge stated the Tribunal was only required to afford the appellant procedural fairness under the Act. The primary judge found there was no evidence that the appellant sought any adjournment or made any request to provide further material or submissions in support of his claim and so there was no refusal by the Tribunal of any such requests. 43 The primary judge, at [27] of his decision, said the Tribunal did not fail to provide the appellant with the opportunity to put further material before it, as demonstrated by the acknowledgment of application dated 24 September 2013; the invitation to attend a hearing dated 28 July 2014; and the Tribunal's compliance with its obligations pursuant to s 424AA of the Act. 44 The primary judge also considered the Tribunal determined the appellant's protection visa application in accordance with the processes prescribed under the Act by inviting the appellant to appear to give evidence and present arguments; hearing the appellant's evidence and arguments; and putting adverse information that formed a reason or part of the reason for affirming the delegate's decision to the appellant. 45 The primary judge concluded that ground two also did not establish jurisdictional error. 46 As to ground three of the judicial review application, the primary judge stated the appellant contended that the Tribunal committed jurisdictional error by failing to inquire as to the authenticity of the FIR. 47 The primary judge said it was for the appellant to make out his case before the Tribunal and the Tribunal does not have a general duty to make further inquiries if it cannot be satisfied that his claims are genuine on the basis of the material presented. However, the primary judge noted, in some circumstances the failure to undertake a simple inquiry as to an obvious and critical fact may constitute a jurisdictional error: SZTKV v Minister for Immigration and Border Protection [2014] FCA 903; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. 48 In SZTKV, the primary judge said, the Tribunal did not commit jurisdictional error by failing to inquire as to the authenticity of documents supplied by the applicants, where the Tribunal raised those doubts, based on country information about document fraud in Bangladesh. The primary judge continued that, similarly, in this case, the Tribunal raised its concerns with respect to the FIR, based on country information regarding document fraud in Pakistan. 49 The primary judge ultimately found that in this case the Tribunal was not obliged to verify the appellant's documents, and so, no jurisdictional error was established by ground three. 50 For these reasons, the primary judge concluded that the Tribunal decision was not affected by jurisdictional error, and so the judicial review application must be dismissed. Appeal to this court 51 By his notice of appeal filed on 22 March 2017, the appellant raises the following grounds of appeal: 1. The judge ignored the factual evidence and no any confirmation is made during almost two years between the hearing and judgment. 2. The court was wrongly assessed the applicant objectively has a well-founded fear of persecution, which is enounced in the Convention relating to the Status of Refugees. 52 The appellant did not file any written submissions prior to the hearing but made brief oral submissions at the hearing which challenged the merits of the Tribunal's decision and, to an extent, the hearing process in the Tribunal. 53 The Minister filed an outline of submissions on 4 August 2017, in which it is argued that neither of the appellant's grounds was raised in the court below and, accordingly, the appellant requires the Court's leave to raise the grounds in the present proceeding. 54 The Minister notes that whether the appellant should be permitted to raise new grounds on appeal depends on whether it is "expedient in the administration of justice" for leave to be granted. The Minister accepts that he will suffer no prejudice from the proposed new grounds being allowed. The Minister submits that ultimately it is the question of whether the new grounds have sufficient merit that will determine the outcome of the application for leave to bring the new grounds: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]; Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 at [33]. 55 The Minister submits there is insufficient merit in the proposed new grounds for the Court to grant leave for the reasons set out below. 56 With respect to ground one, the Minister says the appellant has failed to particularise what factual evidence the primary judge is asserted to have ignored, and further, it is apparent that the primary judge had regard to the evidence submitted by the appellant, which was limited to the Tribunal's notification and decision record. The Minister contends that in the absence of further particulars, this limb of the ground is essentially meaningless. 57 To the extent that the ground challenges the delay between the hearing in the Court below (on 22 April 2015) and the primary judge publishing reasons for his decision (on 28 February 2017), the Minister says no appellable error is revealed. The questions to be resolved by the primary judge were directed to the reasons for decision of the Tribunal and to ascertaining whether the Tribunal had committed jurisdictional error, and no question arose as to the assessment of any witnesses or the credibility of witnesses. Accordingly, the mere passage of time does not constitute any reason to question the findings and conclusions of the primary judge: Moussa v Minister for Immigration and Border Protection [2016] FCA 1403 at [23]-[24]. 58 With respect to ground two, the Minister submits this ground misunderstands the role of the primary judge. The primary judge correctly considered whether the Tribunal's decision was affected by jurisdictional error; the primary judge rightly did not embark on any assessment of the merits of the appellant's claims to fear harm. 59 To the extent that this ground asserts that the Tribunal failed to apply the correct legal test, it cannot succeed. The test for determining a well-founded fear involves a subjective fear of being persecuted and a well-founded, objective basis for that fear: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 379; [1989] HCA 62. The relevant question was whether the appellant had a present fear of risk of harm in the reasonably foreseeable future. 60 The Minister states that it is clear from the Tribunal's reasons at [46] that the Tribunal rejected the underlying factual premise of the appellant's claims. On that basis, it was open to the Tribunal to arrive at the conclusion that it was not satisfied that the appellant faced a real chance of being targeted for, or experiencing, serious harm. No jurisdictional error is revealed. 61 For these reasons, the Minister submits that the grounds of appeal fail to demonstrate any appellable error on the part of the primary judge, or any jurisdictional error in the Tribunal's decision. The Minister further submits that the proposed grounds are without merit, such that it would not be "expedient in the administration of justice" for leave to be granted to the appellant to raise them for the first time on appeal. Consideration 62 As to ground one, it appears that the appellant wishes to argue that the effluxion of nearly two years between the date of his hearing before the primary judge and the delivery of judgment on that judicial review proceeding is so long as to suggest error of a jurisdictional nature. While there are instances of the fact of a long delay being sufficient for a court to infer such error (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77), there is nothing in the circumstances of this case to suggest that the primary judge misunderstood or misconstrued or otherwise failed to conduct the hearing and make the determination in accordance with the materials before him or the applicable law (see SZFNX v Minister for Immigration and Citizenship [2010] FCA 562). There is, for example, no obvious error in any findings made by the judge to suggest that the delay was the cause of that error and so that delay might be a factor that goes to undermine the whole of the judgment appealed from. I do not consider that the delay in question, a little less than two years, whilst regrettable, is of itself sufficient to infer jurisdictional error in this case. See Moussa and authorities there referred to. 63 As to the second ground of appeal, that is a new ground not raised before the primary judge. It is indeed a little difficult to understand, when put in context of the various decisions made to this point, just what it is intending to target by way of error. The fact of the matter is that the Tribunal found against the appellant primarily on credibility grounds. It applied the Convention test appropriately but found that the appellant was not a person to whom Australia owed relevant obligations. In those circumstances, there is, as a matter of substance, no merit in this second ground. As it was not raised in the Court below and lacks merit in any event, leave to rely on it should not be permitted. 64 The oral submissions of the appellant went to the merits and process of the Tribunal hearing and do not go to any question of jurisdictional error identified in the proposed grounds of appeal before the Court. 65 In these circumstances, the appeal should be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 11 August 2017