FEDERAL COURT OF AUSTRALIA DKI16 v Minister for Immigration and Border Protection [2019] FCA 629 Appeal from: DKI16 v Minister for Immigration and Border Protection [2018] FCCA 2246 File number: NSD 1631 of 2018 Judge: GRIFFITHS J Date of judgment: 6 May 2019 Catchwords: MIGRATION – appeal from a judgment and orders of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) which had affirmed a decision of the Minister's delegate to refuse an application for a protection visa – sole ground of the judicial review application was that the appellant disagreed with the AAT's decision – FCCA held no jurisdictional error – no appealable error in FCCA's decision – appeal dismissed, with costs Cases cited: DKI16 v Minister for Immigration and Border Protection [2018] FCCA 2246 Date of hearing: 7 February 2019 and 6 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The appellant appeared in person. Solicitor for the Respondents: Mr L Dennis of MinterEllison ORDERS NSD 1631 of 2018 BETWEEN: DKI16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 6 May 2019 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J 1 The appellant appeals from a judgment and orders dated 15 August 2018 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as DKI16 v Minister for Immigration and Border Protection [2018] FCCA 2246. The primary judge dismissed the appellant's judicial review application of a decision dated 18 October 2016 of the Administrative Appeals Tribunal (AAT), which dismissed his application for a review of the delegate's decision dated 8 July 2015 which refused him a protection visa. 2 The appellant was not represented in the FCCA. His single ground of judicial review was that he disagreed with the AAT's decision and wanted to go to court and seek justice. 3 The primary judge set out extracts from the Minister's submissions as an accurate summary of the relevant background matters. The appellant did not contest the accuracy of that summary which, for convenience, is repeated: B FACTUAL BACKGROUND 3. The applicant is a citizen of Pakistan, who arrived in Australia on 20 May 2012 as the holder of a student visa (Court Book (CB) 3). On 1 October 2013 he travelled offshore and returned to Australia on 3 November 2013 as the holder of the same visa (CB 121). 4. On 28 August 2014 the applicant applied for a protection visa (CB 1-40), claiming that he could not return to Pakistan due to his fears of being harmed. He claimed that he would be harmed on return to Pakistan because it would be known that he was returning from overseas and because his father has connections to Akbar Bugti (who was the head of the Bugti tribe of the Baloch people). He claimed that he would not be able to obtain state protection because of corruption and the unstable political situation in Pakistan. 5. On 8 July 2015, a delegate of the Minister (the delegate) refused to grant the applicant a protection visa (CB 120-129). 6. The applicant subsequently applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's decision and he appeared before it on both 15 September 2016 (CB 167) and 5 October 2016 (CB 188) to give evidence and present arguments. 7. The Tribunal affirmed the delegate's decision on 18 October 2016 (CB 229-2440. C TRIBUNAL DECISION 8. Before reaching any factual findings about the applicant's protection claims, the Tribunal made the following findings about a number of preliminary matters: (a) The Tribunal was satisfied, after considering the medical evidence provided by the applicant to it and to the Minister's department, that the applicant had a real opportunity to put evidence and submissions in support of his case at the hearings on 15 September and 5 October 2016 (at [7]-[9]). In particular, the Tribunal noted that it had scheduled the second hearing after the applicant stated he was 'tired' at the first hearing after discussing the majority of the applicant's claims (at [8]) and was of the view that he was able to respond to material questions put to him at the hearings in a meaningful way (at [9]). (b) Despite acknowledging the delay of over two years in the applicant lodging his protection visa application after his arrival in Australia, the Tribunal did not draw any inference from that delay (at [10]-[11]). (c) The Tribunal found that the First Information Report (FIR) provided by the applicant relating to an incident in Karachi in January 2012 was 'fraudulent/false' (at [19]). This was because country information before the Tribunal indicated that document fraud in Pakistan was prevalent, including in relation to FIRs, and because of the applicant's own evidence about the FIR he provided containing a number of pieces of incorrect information (at [12]-[18]). Despite this finding, the Tribunal accepted that in January 2012 his father was a witness to an incident in Karachi that involved two men firing guns (at [20]). 9. In respect of the applicant's protection claims, the Tribunal made the following findings: (a) The applicant's family was not being harmed, harassed or questioned in Pakistan (at [27]), and the applicant had not been harmed, harassed or questioned whilst in Karachi between 2009 and 2012 (at [28]). (b) The applicant's father had been subject to some threats in 2006 after the death of Akbar Bugti, whom he had come to know, however those threats stopped shortly thereafter (at [34]). While the applicant's father was approached once in 2007 or 2008, nothing else has happened to his father since that time (at [36]). (c) While the applicant's family was asked for on five or six occasions after 2008, this was not for any reason feared by the applicant or any reason that would now give rise to protection obligations in Australia (at [36]). (d) The January 2012 incident that the applicant's father was a witness to did not have anything to do with the father and did not relate to him for any reason, including because of his relationship with Akbar Bugti (at [38]). (e) While the applicant's father's car was stolen, this was by 'miscreants' and not because he (or the applicant) was of any adverse interest to anyone in Pakistan (at [40]). The Tribunal was also not satisfied the incident now gave rise to protection obligations in Australia for the applicant (at [40]). (f) Based on the country information, the Tribunal was not satisfied that all persons residing in Karachi have a real chance of suffering harm because of current political and security situation, and, based on the other findings reached by the Tribunal, the applicant does not personally have a real chance of suffering harm if he returned to Karachi because of the political and security situation (at [46]). (g) The applicant's prior medical and social treatment did not indicate that he had been harmed in any way because of his health, nor would he in the future on the basis of the country information and the accepted claims (at [52]). In any event, any harm would not be for a Refugees Convention reason (at [52]) and would not amount to significant harm (at [63]-[68]). (h) The applicant would not be harmed as a failed asylum seeker from a Western country even if he returned to Pakistan involuntarily, based on the Tribunal's findings about the applicant's profile and country information (at [55] and [57]). 10. In light of these findings, the Tribunal found that the applicant did not have a real chance of suffering serious harm, or a real risk of suffering significant harm, in Pakistan. The Tribunal therefore concluded that the applicant did not satisfy the criteria contained in paragraphs 36(2)(a) or 36(2)(aa) of the Act and that he was not a person in respect of whom Australia has protection obligations. The primary judge's reasons for judgment summarised 4 The primary judge noted that the appellant had had two AAT hearings, one on 15 September 2016 and another on 5 October 2016. This was partly related to the appellant's mental health condition and the medication he was taking. The primary judge noted that the AAT made express findings that it was satisfied that the appellant had been given a real opportunity to put evidence and submissions in support of his case notwithstanding his medical problems. 5 Her Honour then summarised the relevant parts of the AAT's reasoning for rejecting the appellant's claims to protection, both under the Refugees Convention and under complementary protection. In particular, her Honour emphasised that the AAT had concluded, based on country information, that it was not satisfied that all persons residing in Karachi have a real chance of suffering harm. The AAT had also considered the relevance and implications of the appellant's health problems. 6 Her Honour concluded that the findings made by the AAT were reasonably open to it, including its adverse credibility findings. She concluded that no jurisdictional error had been demonstrated. Her Honour also noted that, on the fair reading of the AAT's decision record, the AAT clearly understood the appellant's claims, explored those claims with the appellant and had had regard to all the material before it. 7 Her Honour held that the AAT's decision was not affected by jurisdictional error. Notice of appeal and adjournment 8 The appellant, who represented himself, filed a notice of appeal dated 5 September 2018 in which the sole ground of appeal was that the FCCA had erred in finding that the AAT's decision was not affected by jurisdictional error. 9 His notice of appeal contained the following single ground (without alteration): The Federal Circuit Court erred in finding that the tribunal decision was not affected by jurisdictional error. 10 On 1 February 2018, shortly before the original scheduled hearing of the appeal, the appellant sought an adjournment of 9–12 months based on his mental health problems and his financial difficulties which he said resulted in him being unable to afford to retain a paid lawyer. The Minister opposed the adjournment. After hearing submissions, the hearing was adjourned for approximately three months. Directions were made for the appellant to file and serve any amended notice of appeal and an outline of the submissions in support of his case, and for the Minister to file and serve any further supplementary submissions in response. The parties' material 11 When the hearing resumed on 6 May 2019, the appellant had not filed an outline of submissions in support of his appeal, nor had he filed an amended notice of appeal. When he was asked to identify the primary judge's error and to say anything that he wished to say in support of his appeal, the appellant reiterated that he did not have a lawyer and that his case could be stronger if he did. He did not say anything in support of his appeal. 12 The Minister relied on an outline of submissions filed in preparation for the February hearing which I need not summarise. Consideration and determination 13 Having read the primary judge's reasons for judgment and the relevant underlying material, I am not satisfied that the appellant has established any appealable error. I respectfully agree with her Honour's reasons for dismissing the judicial review application. 14 I accept the Minister's submission that the single ground of appeal, as set out in [9] above, is not a proper ground of appeal. It does not adequately identify any arguable appealable error by the FCCA. 15 If it be the case that the appellant intended the single ground of appeal to be read as stating that the FCCA erred in finding that the sole ground of judicial review before it did not give rise to a jurisdictional error on the part of the AAT, this takes the matter no further. As the Minister pointed out, the single ground of judicial review in the FCCA was not itself a proper ground of judicial review. Rather, it simply involved an assertion by the appellant that he disagreed with the AAT's decision. In the FCCA, the appellant needed to demonstrate jurisdictional error on the part of the AAT and not simply assert a disagreement with the merits of the AAT's decision. Conclusion 16 The appeal will be dismissed, with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 6 May 2019