FEDERAL COURT OF AUSTRALIA DSW16 v Minister for Immigration and Border Protection [2020] FCA 107 Appeal from: DSW16 v Minister for Immigration & Anor [2019] FCCA 1658 File number: NSD 1050 of 2019 Judge: SNADEN J Date of judgment: 13 February 2020 Catchwords: MIGRATION – protection visa – appeal from the Federal Circuit Court of Australia (the "FCCA") – application for judicial review of a decision of the Administrative Appeals Tribunal (the "AAT") – whether the AAT's decision was affected by jurisdictional error – whether the AAT erred in failing to understand, explore or have regard to claims put to it by the appellant – where notes (produced by a representative of the first respondent for the purposes of the visa application decision) were unable to be produced – whether the failure to produce notes constituted jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425 Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 DSW16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 1658 Date of hearing: 20 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 1050 of 2019 BETWEEN: DSW16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: SNADEN J DATE OF ORDER: 13 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 The appellant is a citizen of Pakistan. He is aged 60 years and hails from Islamabad. He is an adherent of the Muslim faith and was formerly employed as a journalist in his home country. He arrived in Australia on 10 December 2012 on a visitor visa and has remained here ever since. 2 On 1 March 2013, he made an application under the Migration Act 1958 (Cth) (the "Act") for a protection visa (the "Visa Application"). The bases upon which he claimed to be entitled to protection are set out below. On 11 December 2014, a delegate of a predecessor of the first respondent (hereafter, the "Minister") refused the appellant's Visa Application (hereafter, the "Delegate's Decision"). On 17 December 2014, he applied to the Refugee Review Tribunal—the functions of which were later assumed by the second respondent (hereafter, the "Tribunal")—for review of the Delegate's Decision (the "Review Application"). On 14 November 2016, the Tribunal affirmed the Delegate's Decision (the "Tribunal's Decision"). 3 On 7 December 2016, the appellant filed an application for judicial review (the "Judicial Review Application") in the Federal Circuit Court of Australia (the "FCCA"). On 18 June 2019, the FCCA dismissed the Judicial Review Application: DSW16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 1658 (Judge Emmett; hereafter, the "FCCA Judgment"). The appellant now appeals from the FCCA Judgment. 4 At the hearing of the appeal, the appellant appeared in person and made oral submissions with the aid of an English-Urdu interpreter. By his notice of appeal, he presses two appeal grounds, namely (errors original): 1. The Federal Circuit Court erred in its statement that 'the Tribunal understood the claims being made by the [appellant]; explored those claims with the [appellant] at a hearing; and, had regard to all material provided in support'. The Tribunal's reasoning process, conduct and decision record show that the Tribunal misconceived its statutory function. Rather than carrying out its role in examining and rectifying defects in the administrative decision-making processes, in circumstances where material facts were not fully explored by the decision-maker. The Tribunal mistakenly discredited the truthfulness of claims consistently made by the [appellant], by imputing the flaws in the interview process upon the [appellant]. This is not the conduct of a reasonable merits review carrying out its statutory function. [T]he Tribunal put to the [appellant] that he had not mentioned these claims previously. The [appellant] responded that he had mentioned his [son's] death in his interview with the Delegate. Following the hearing the Tribunal reviewed the recording of the [appellant]'s interview with the Delegate and noted that the [son's] death was mentioned briefly, but no details were provided (para 35 of FCC decision) The Tribunal also stated that 'I observed that he did not appear to have mentioned these claims prior to the hearing. He said he had mentioned his son's death in his protection visa application and during his interview with the delegate. Following the hearing I reviewed the [appellant] and the interview recording. As noted above the [appellant]'s [son's] death was mentioned briefly on both occasions, but no details were provided." (para 51 of FCC decision) [T]he Tribunal had taken into account the fact that the Delegate did not ask the [appellant] for details about his [son's] death. It was of concern to the Tribunal that the [appellant] did not hesitate to provide details of other matters when not asked specific questions. Therefore the Tribunal did not accept that he would have failed to give a full account of his son's death to the Delegate if, indeed, his son had been murdered as claimed.' (para 83 of FCC decision) 2. The Federal Circuit Court ought to have concluded that the Tribunal's decision was affected by jurisdictional error as this was the logical conclusion from a fair reading of the conduct and thought process evident in the Tribunal's decision. The Tribunal's confusion as to why claims were not recorded in Departmental notes, caused it to take into account irrelevant matters, give probative weight to matters that were not relevant and discard relevant evidence. The way that the Tribunal had conducted the review deprived the [appellant] of the possibility of proving how the criteria for a protection visa had been met. The jurisdictional error that infects the Tribunal decision handed down on 14 November 2016 was not rectified by evidence supplied in 2019 about being 'unable to locate any material matching the description "delegate's very comprehensive notes of that interview" (at para 74 of FCC decision). Nor is it rectified by the affidavit sworn on 23 January 2019 by a Delegate who was not the person that conducted the interview, stating that 'if there were notes she would have read them' (at para 78 of FCC decision). 5 Before turning to them, it is convenient to identify why it was that the Tribunal rejected the appellant's claim to protection, and why the primary judge rejected his contention that the Tribunal's Decision was a product of jurisdictional error. 6 The claims that the appellant advanced before the Tribunal and the Tribunal's reasoning in respect of those claims is the subject of extensive consideration in the Tribunal's Decision. The following lengthy passage from the Tribunal's Decision identifies the claims that the appellant made and the Tribunal's consideration of those claims (references omitted): 18. At the Department interview the delegate asked him why he waited until March 2013 to apply for protection. He said that he had not intended to seek protection in Australia when he arrived. He had planned to travel on to the USA and then return home, but about three months after he arrived in Australia his wife told him that three unidentified men had come to his home looking for him. When asked why this caused him to change his plans his response was vague. The delegate did not accept this explanation and found his delay in seeking protection cast doubt on the credibility of his claims. 19. At the hearing the [appellant] said that he had come to Australia as a tourist to see if he could live here as he was fearful that he might be followed here as he had been when he visited the US in 2010 [see also below]. I noted that he had previously indicated both that he left Pakistan to seek protection because his life was in danger and that he intended to return to Pakistan via the US after visiting Australia. The [appellant] said that the situation in Pakistan was very dangerous for him when he left, but he was waiting to see if things normalised before deciding what to do. About 2 months after his arrival his wife called and told him that suspicious people had come to his house at about mid-night. They told her that they were friends of a Taliban leader and they were looking for the [appellant] who appeared to have disappeared. His wife denied that she was married to him, but she was not believed. Nobody came to his house again following this visit, but his wife received many threatening calls which continued even when she changed her telephone number. She reported the calls to the police. 20. I do not accept that members of the Taliban or anyone else came looking for the [appellant] after he left Pakistan or that his wife was receiving threatening telephone calls at the time he lodged his application for protection. There is no mention of these visits or telephone calls in his protection visa application. If someone was actively looking for the [appellant] in Pakistan and threatening his wife at the time he lodged this application, I believe that he would have mentioned it. In addition, he has given differing accounts of the identity of these men, describing them as unidentified during his Department interview but claiming that they were friends of a Taliban leader during the hearing. Finally, as discussed below, I do not accept that the [appellant] had been threatened or harmed by the Taliban or any other extremist group prior to his departure from Pakistan and I find the claim that a Taliban leader came looking for him after his departure far-fetched and implausible 21. I find that the [appellant] concocted the claim that someone from the Taliban came to his house looking for him about 2 months after he arrived in Australia and his wife began to receive threatening telephone calls following this to explain his delay in applying for protection and to enhance his claim for protection. I also note that the [appellant] is an educated man who speaks English and worked as a journalist for many years. He clearly had the ability to obtain information on how to seek protection in Australia. In these circumstances, I find his failure to do so in a timely manner, a strong indication that he does not fear serious or significant harm in Pakistan. His willingness to concoct claims to overcome problems in his case also reflects poorly on his credibility. Failure to seek protection in the USA in 2010 22. The [appellant] claims that he had been…threatened by extremists and others for a variety of reasons since 2004 and that he was kidnapped by the Taliban in 2008. In 2010 he travelled to the USA to visit his sister. At the Department interview he was asked why he returned to Pakistan after this visit if he was at risk of harm. He said that he had written many articles which were critical of US policies and he had been approached a number of times by the FBI during his visit. They accused him of having links to the Taliban and warned him not to criticise the US or meet with Pakistani groups during his stay. The delegate asked why he was given a visa to visit the US if they had concerns about his character. The [appellant] said that he did not know. He said that he left the US three months earlier than planned because of this. 23. During the hearing the [appellant] again claimed that he had been followed by the FBI during his visit in 2010. He said that FBI agents had followed him from New York to an airbase in Aberdeen where they stopped him in the street, addressed him by name and told him to leave. He also claimed that he had seen some suspicious people near his sister's house, but who these people were he said he did not know. He claimed that he had been followed by people from the FBI on another occasion. He said that [they] had not shown him any ID and told him that they were following someone else and he should mind his own business. Sometime later some FBI agents stopped his brother-in-law in the street, identified themselves and questioned him about the [appellant]. 24. When asked why the FBI was interested in him, the [appellant] said that it was because of the anti-US articles he had written and because they believed that he was in the Taliban. I observed that I had read articles in US papers which were more critical of the US government than the articles he had written. He said that the situation was different because he was an opinion builder in Pakistan. I advised him that I had difficulty accepting that he would have been granted a US visa if the US authorities believed that he was in the Taliban. The [appellant] said he was a high profile journalist and perhaps they were fearful he would write more critical articles about the US or they believed that they could change his view. 25. I found the [appellant]'s evidence at the hearing regarding his encounters with the FBI during his visit to the USA far-fetched and completely implausible. I do not believe that he would have been given a US visa if the FBI or anyone else believed that he was member of the Taliban. If for some reason evidence came to light after he arrived that suggested he was a member of the Taliban, I believe he would have been arrested or at least deported. I also find the claim that he was followed and questioned by the FBI during his visit because he had written articles criticising US policies in Pakistan and the region far-fetched and implausible. There is nothing in the evidence he has provided which suggests that his criticisms were more than general comments frequently made by many journalists and commentators inside and outside the US and I do not believe that the FBI would have monitored his movements in the manner claimed merely because of this. Finally, the [appellant]'s claim that…he was of interest to the FBI in 2010 and left early because of this does not sit well with the claim that he was planning to travel to the US after visiting Australia in 2013. 26. I do not accept that the [appellant] was questioned or followed by the FBI or anyone else during his visit to the US in 2010. I believe that he concocted the claim that he had been followed and questioned by the FBI during his 2010 visit during his interview with the delegate to explain why he had returned to Pakistan at that time despite also claiming that he was being threatened in Pakistan. I find his failure to seek protection in the USA in 2010 a strong indication that he was not fearful that he would be seriously harmed by anyone in Pakistan at that time. Furthermore, his willingness to concoct these claims is a further indication that he is not a truthful or a credible witness. Evidence provided to the Department regarding problems with extremists 27. In his protection visa application provided on 1 March 2013 the [appellant] claimed that he would be at risk of serious harm from extremists if he returned to Pakistan because of his work as a journalist. However, while he provided a detailed account of his employment dating back to 1991, he gave limited information about his reasons for seeking protection. He claimed that he had been…threatened, kidnapped and tortured mentally and psychologically by extremists because he had been outspoken on social, political and religious topics. Specifically he claimed that he had been threatened by terrorists a couple of times on his way home in 2008 because he had published an article which named the Taliban as the abductors of Ambassador Tario (sic). He said that the Taliban harassed him following this by contacting him by telephone and on one occasion they had stopped him on his way home. He also claimed that in 2012 he was "sort of" kidnapped when an article appeared in the newspaper at which he worked. He stated that his son had been killed, but did not say when this happened, who was responsible or why he was killed. He said that he had gone to the police every time he was threatened. He said that he would provide a further statement setting out details of his claims, but failed to do so. 28. The [appellant] was interviewed by a delegate of the Minister for Immigration on 30 August 2013. I have listened to the recording of this interview. Some of the evidence given by the [appellant] was confused and it appears that the delegate may also have been confused particularly in relation to his claims regarding being kidnapped in 2008. The summary set out below does not always reflect the sequence in which evidence was provided. 29. The [appellant] was asked why he believed his life was at risk in Pakistan. He responded that the Taliban fundamentalist groups and the government were against him because of the articles he had written. The latter issue is address[ed] below. 30. The [appellant] said that he had written positive articles about groups such as the Taliban in the past, however, this changed when he began to support Pervez Musharraf. Musharraf, who was President from 2001-2008 was anti-Taliban, which caused the [appellant] to also be viewed as anti-Taliban. He said that he had written articles critical of the Taliban…until 2008 when his life was threatened and he stopped. 31. The [appellant] said that in February 2008 he had obtained information from his sources that the Ambassador Tariq Aziz had been kidnapped by a Taliban group. He published this news and it was taken up internationally. Following this the Taliban contacted him and asked him if he worked with intelligence agencies, which he denied. The Taliban told him that they had his name and address and he would be killed if he did not publish a retraction. To ensure his safety he published a statement the following day denouncing opponents of the Taliban. He did not write any articles regarding the Taliban following this. 32. Later in the interview the [appellant] claimed that he was abducted in 2008. He said that he had been forced into a vehicle, but escaped by convincing his abductors that he might be ill because he had diabetes so that he could sit near the window. He then flung himself out of the window when the vehicle slowed down near a traffic policeman. 33. The delegate observed that the [appellant]'s claims regarding his escape appeared implausible as it was difficult to understand how he would have been able to exit the car without being restrained, particularly as he was neither young nor thin. The [appellant] claimed that he was quite athletic and added that when someone is fearful they can achieve greater feats than you would normally be capable of. 34. The [appellant] was asked about the problems he faced between the time he was kidnapped in 2008 and his visit to the USA in 2010. He said that his son had been killed. No further information was sought or provided regarding this claim. He also spoke about problems related to his marriage to a Christian woman. 35. The [appellant] confirmed that he had been in [the] USA for three months in 2010. When asked why he had returned to Pakistan if his life was at risk there, he spoke about problems in the US [see above] and said that he went into hiding when he returned and did not work until October 2011. He also claimed that while he was in the US his Christian wife had called him and told him suspicious people were coming to their home and she was very frightened. He told her to move, which she did. 36. The [appellant] claimed that he was detained for a day in February 2012 by a different Taliban group from the one that had abducted him in 2008. When asked…why he had been abducted if he was no longer writing anti-Taliban articles, he said it was because he was married to a Christian and some of her relatives worked for European Embassies and Blackwater and because he had visited the Presidential palace and other important Ministries so he was suspected of selling information to company Blackwater and others. 37. The [appellant] claimed that while he was held by this group he was asked how he had supported himself while he was not working and accused of getting money from Blackwater and other agencies. He was also questioned about his visit to the US and his attendance at US workshops on journalism in Pakistan. The delegate asked why the Taliban would see him as a supporter of the US if he had written articles which criticised them, he said that it was because he had ceased supporting them and begun to support Pervez Musharraf who was killing the Taliban so they became his enemy. He said that he was released after a day on the condition that he would write articles critical of Blackwater. 38. The [appellant] said that while in Australia he had written two articles which he sent to Pakistan however they had not yet been published. 39. At the end of the interview the [appellant] provided the delegate with a large number of documents including numerous articles which appeared in newspapers in Pakistan (mostly between 1999 and 2005, but three dated 2007, 2008 and 2012); references, identity cards, invitations to official government and diplomatic events and appointments to government boards (most date from the time that President Musharraf was in power but there is also a copy of an invitation to an address by President Zadari in March 2009, an invitation to an Iftar dinner at Prime Minister House Islamabad in August 2012 and an invitation to training sessions organised by the US Embassy in May 2010 and 2012); photographs of himself attending rallies and demonstrations and several complaints to the police regarding threatening telephone calls in 2004 and 2006. These documents were not discussed at the interview. 40. The delegate accepted that the [appellant] worked as a journalist in Pakistan, but found that the absence of documentary evidence of active involvement in [the] profession after 2004 and the [appellant]'s failure to provide copies of key articles which he claimed had caused him problems together with his failure to apply for protection in a timely manner cast doubt on his credibility. She found his evidence regarding being kidnapped in 2008 and 2012 implausible and rejected these claims. After considering evidence from a number of independent sources she did not accept that he faced a real chance of facing serious or significant harm on return to Pakistan because of his work in the media. Evidence provided to the Tribunal regarding problems with extremists 41. On 10 July 2016 the Tribunal received a submission prepared by the [appellant]'s representative. In essence it claims that his earlier claims are true but were misunderstood by the delegate. A number of newspaper articles written by the [appellant] were also provided. Many of them duplicated the documents previously provided to the Department. 42. A number of...these articles were dated between 1999 and 2003 [and] were described as being anti-Taliban in the [appellant]'s representative submission. I reviewed these articles. They do not mention the Taliban by name and while the writing style and the quality of the translation means that they are not always easy to understand I was unable to locate any which appeared to be particularly critical of the group. At the hearing I noted that these articles did not appear to mention the Taliban or to be anti-Taliban. The [appellant] said that they were viewed as pro-Musharraf and because of this that [sic] he had been threatened by the Taliban in 2004. He said that apart from the 2008 article he had not written any anti-Taliban articles following 2004. 43. The [appellant] also provided several articles dated 2001 and 2002 which report that he had been a candidate for local government and for the executive of the press club in Islamabad; two articles dated 2003 which report that he attended a conference in Geneva; an article dated 2007 which reports on the suicide of a couple in Pakistan; an article dated February 2008 which states that the [appellant] had been assigned to publish a newsletter for Reconciliation Committees and an article dated January 2012 which appears to relate to the constitutionality of a measure of some kind which involved the government and the military. 44. When asked to explain the significance of these documents at the hearing the [appellant] said that they showed he had a good reputation when President Musharraf was in power and that the anti-Musharraf forces had a problem with him. I observed that many other journalists would have written pro-Musharraf articles during this time in power. The [appellant] agreed that this was true, but said that he had worked particularly closely with the former President. 45. The [appellant] provided a number of untranslated issues of Pakistan Today which is published in Australia. He said that they included an article he had written criticising extremism in Australia and an article which reported on an assassination by the Taliban. He provided a translation of the former, but not the latter. 46. The [appellant] also provided copies of a number of police reports regarding threatening telephone calls. Some state that he had lodged a complaint on 19 January 2004 regarding threatening telephone calls from unknown people which he believed were linked to his work as a journalist. The others are dated between 16 October 2006 and 30 October 2006. They state that he had secretly married a Christian woman in 2005 and when their marriage became public after their first child was born in March 2006 he began to receive threatening telephone calls from extremists who demanded that he divorce his wife and abandon his child. The letters indicate that the complaints were taken seriously by the police. One occasion a police constable was assigned to protect the [appellant] for four days and that on another occasion the patrol officer from a security service was instructed to monitor his residence. 47. At the hearing I asked the [appellant] about these threats. He said that he had received calls from 2004 until 2007, then said he had continued to receive calls after 2007 and finally claimed that his family in Pakistan continued to receive threatening telephone calls. He said that the callers had identified themselves as members of Lashkar-e-Jhangvi (LeJ), the Ahlsullat group, the Taliban and other groups. Some were related to his profession as a journalist and some related to his human rights work for Christian communities from 2004 onwards. Some warned him not to support the government. From 2006 extremist groups threatened him and told him that he should divorce his Christian wife. 48. I noted that the [appellant] had not mentioned that he had been involved in human rights activities in support of Christians in 2004 prior to the hearing. He said that he might have mentioned this in his interview (he did not) and added that he had provided some photographs. Later in the hearing he clarified that he had not been a member of any human rights groups, but said that he had used his contacts in the government to arrange for water to be connected to Christian communities and acted as a mediator between a mosque and nearby church during a dispute over a community plot. 49. I noted that the [appellant] had previously stated that he had gone to the police whenever he was threatened, but he had only provided documents relating to threats in 2004 and 2006. The [appellant] did not respond directly to this comment, but he maintained that he had continued to receive threats after 2006. 50. I observed that the documents which the [appellant] had provided to the Department regarding the 2006 calls indicated that he had received assistance and protection from the police. He said that he had only received limited assistance and that this was done to satisfy the media community. 51. On 10 July 2016 the [appellant] provided a copy of an undated death certificate which states that a one year old child had died of head injuries and names him as the father. At the hearing he said that it recorded the death of his first child with his Christian wife who had been attacked with an iron or wooden rod by Taliban when he was playing in the street in April 2007. He was not present when the attack occurred. His son was taken to hospital and died three days later. He received a telephone call from the extremist group LeJ who told him that they had killed his son and told him to divorce his wife and get rid of his in-laws. I observed that he did not appear to have mentioned these claims prior to the hearing. He said he had mentioned his son's death in his protection visa application and during his interview with the delegate. Following the hearing I reviewed the [application] and the interview recording. As noted above the [appellant]'s son's death was mentioned briefly on both occasions, but no details were provided. 52. On 10 July 2016 the [appellant] provided a translation of an article dated 13 February 2008 which he claims to have written. It reports that Ambassador Tariq had been kidnapped and the government and the Taliban were in neg[oti]ation regarding his release. According to the submission provided by his representative at the same time, the [appellant] was harassed by the Taliban because the article revealed that the Taliban was responsible for Tariq's abduction. 53. When the events of 2008 were discussed at the hearing the [appellant] again claimed that he was the first journalist to report that the Taliban were responsible for the abduction of Ambassador Tariq. I noted that the article he had provided was dated 13 February 2008 and advised him that I had located a copy of an article in the English language Long War Journal dated 12 February 2008 which states that the Ambassador had been abducted by the Taliban and observed that this suggested that he had not been the first to report this event. The [appellant] said that he had been the first to reveal that the government was negotiating with the kidnappers and it was this that had angered the Taliban. 54. The [appellant] again claimed that he had been kidnapped by the Taliban in February 2008 because of his report on the kidnapping of Ambassador Tariq. He said that he was abducted by four men who forced him into a van and escaped when the van slowed down while [he] was pretending to vomit out the window. He said that there was a traffic policeman nearby and the van drove on leaving him lying injured on the road. The traffic policeman helped him up, but did not call for help. He went to a private clinic and later reported the incident to police. They took a report but did not give him any documents. He also reported the incident to his newspaper who advised him to do desk work. 55. I advised the [appellant] that I had difficulty understanding how he would have been able to jump out of the window of a vehicle which contained four people intent on abducting him. The [appellant] said that people were capable of anything in such situations and maintained that he was telling the truth. 56. Apart from the claim that he continued to receive threatening telephone calls, the [appellant] provided no [further] evidence regarding problems with extremists between 2008 and his trip to the USA in August 2010 at the hearing. 57. I asked the [appellant] why he had gone into hiding after returning from the US in December 2010. He said that there were growing threats against him from powerful parties who believed he had become a US spy because he had visited the US for 3 months. He added that his Christian wife who lived with her mother while he was in the US had telephoned to say that someone had come to the home they had shared before he left for the US and asked the neighbours where he was. They did not identify themselves or say why they wanted to see him. He said that a van had been parked near the house for about 3 hours. He arranged for his brother to move his possessions from that house to another house and went to live in the new house with his wife when he returned from the US. Nothing happened to him while he was living at the new house. 58. I asked the [appellant] to tell me about the period between 2010 and 2012. He said that a warrant had been issued for his arrest in 2012 and his home had been raided 6 or 7 time[s] because of this [see also below], but made no further claims regarding threats or harm from extremists. 59. The [appellant] claimed he was kidnapped by the Taliban for a second time in February 2012. He said that he was in his car near his home when he was stopped by two armed members of the group, blindfolded…and taken to a place about 90 minutes away. His captors asked him why he had gone to the US and who had paid for the trip. He explained that he had sold two cars to pay for the trip. They also asked why he had been at a breakfast with US Senator John Kerry. He explained that he had been one of about 10 journalists invited to breakfast with Senator Kerry in 2009. He was forced to swear on the Koran that he would work for the Taliban who threatened to kill him by grenade or gun if he did not cooperate. He was warned that the group could take him at any time if he ceased cooperating after his release. 60. The [appellant] said that he had reported this incident to the police but they did not do anything. He also told his editor, but the editor did nothing and asked him not to publish inflammatory articles. He also claimed that he had been fired in 2008 after he wrote about the Taliban, in 2012 after a warrant was issued for his arrest (see also below) and in 2007 when he wrote a report against the Taliban. I noted that he had previously told me that he had not written anti-Taliban articles after 2004. He said that he had written an article in 2007, but it had not been published and the paper had fired him. 61. In the submission provided on 10 July 2016 the [appellant]'s representative claimed on his behalf that he and his wife had separated in 2012 because she was feeling insecure for herself and her children. He also provided a copy of papers which state that the [appellant]'s wife divorced him in August 2012 because he was violent and did not provide support for her and her children. When I asked the [appellant] about this document at the hearing he said that it had been provided by mistake. 62. [I]n July 2016 the [appellant] provided a number of articles relating to the current situation in Pakistan and in particular to the situation of journalists. At the hearing I advised him that I had reviewed these documents but none of them appeared to relate to him or the papers he had worked for. The [appellant] agreed that this was correct and said that the articles were intended to give general information on the situation in Pakistan. 63. At the hearing I advised the [appellant] that while I was aware that some journalists had been threatened, abducted or killed because [of] their work in Pakistan the evidence did not appear to suggest that all journalists were at risk of such harm…because of their work. I noted that the report from the Pakistan Press Foundation which he had provided stated that only two journalists had been murdered in Islamabad between 2001 and 2015, while 28 were assaulted and 3 abducted. I also advised him that it was my understanding that there were thousands of journalists in Pakistan and that as Islamabad is the capital it seemed likely that there were hundreds of journalists based there. I observed that it did not appear that journalists in Islamabad were generally at risk of serious harm from militants. The [appellant] said that some journalists were abducted in Islamabad and killed elsewhere. He spoke about murders in Karachi and added that the government sector could do whatever they liked. 64. I noted that there had been a crackdown on terrorists in Pakistan in recent years which also appeared to suggest that the level of risk from terrorists had been reduced. The [appellant] said that actions in terrorist strong-holds meant that they had moved into the cities where they were moving freely. Finding of fact regarding threats from extremists 65. Central to the [appellant]'s claims relating to his fear of extremists is the claim that he was kidnapped by two different Taliban groups in Pakistan in 2008 and 2012. For the reasons set out below I do not accept that the [appellant] was kidnapped by the Taliban or anyone else for any reason in 2008 or 2012. 66. The claim that the [appellant] was abducted in 2008 was first made during his interview with the delegate. In his protection visa application the [appellant] said that he had been "sort of kidnapped" in 2012, but only claimed to have been threatened and stopped in the street in 2008. I note that the [appellant] is a journalist and his profession involves the ability to record facts in a reasonably complete manner. If he had been abducted in 2008 I believe this would have been clearly stated in his protection visa application. I find his failure to do so a strong indication that this claim is not true. 67. In his submissions to the delegate and his written and initial oral evidence to the Tribunal the [appellant] said that he had been kidnapped in 2008 because he had written an article revealing for the first time that the Taliban was responsible for the kidnapping of Ambassador Tariq. However, when I pointed out that I had located an article in an international publication which pre-dated the article he had provided, he changed his evidence and claimed that it was the revelation that the Taliban were negotiating with the government which upset the Taliban. I do not accept this explanation. I believe that the [appellant] changed his evidence to overcome the problems I had pointed out. I also note that the Long War Article also reports that the Taliban were attempting to negotiate with the government over a prisoner exchange, which is at odds with the [appellant]'s claim that he was the first to reveal this information. 68. Finally, I found the [appellant]'s account of his alleged kidnapping in February 2008 far-fetched and implausible. I do not accept that he would have been able to escape out of the window without being stopped by the four men who were attempting to kidnap him. As pointed out by the delegate, it would not be easy to climb out of a window and the [appellant] is neither young nor thin. 69. I accept for the purposes of this decision the [appellant] wrote an article regarding the kidnapping of Ambassador Tariq on 13 February 2008. However, I do not accept that he was the first to reveal that the Taliban were involved or that the government and the Taliban were in negotiation over his release or that he was threatened or kidnapped by the Taliban at any time because of this article. I find that these claims were concocted to enhance his chances of obtaining a protection visa. Given that there is no credible evidence which suggests that this article caused the [appellant] to face problems at any time prior to his departure for Australia in 2012, I do not accept that there is a real chance he will face serious harm on return to Pakistan because of this article or that it will have any impact on his treatment. 70. I also find the [appellant]'s claim that he was abducted by the Taliban in 2012 to be lacking in credibility. 71. In the first place he has provided confused and inconsistent evidence regarding the reasons he was kidnapped in 2012. According [to] his protection visa application, he was abducted because of a column which appeared in a newspaper. This claim was not repeated in later written or oral submissions. He told the delegate that he had not written any articles critical of the Taliban after 2008 and claimed that he was kidnapped in 2012 because of his marriage to a Christian woman, his association with her family who were employed for European Embassies and US companies, his visit to the US, his attendance at US Embassy events in Pakistan and his past support for President Musharraf. I believe that the [appellant] changed his evidence regarding the reasons he was abducted in 2012 when speaking to the delegate because his original claim was at odds with the evidence that he had ceased writing anti-Taliban articles well before 2012. I also note that when questioned about his 2012 kidnapping at the hearing the [appellant] said that he was questioned about his visit to the US and his involvement in events arranged by the US Embassy in Pakistan, but said nothing which suggested that his captors were concerned about his marriage to a Christian woman. 72. Secondly, the [appellant] provided differing accounts of the demands made by the Taliban and the reasons for his release. He told the delegate that he had been forced to agree to write anti-Blackwater articles, but told me during the hearing that he had been forced to swear on the Koran that he would work for the Taliban. While these demands are not mutually exclusive, I do not accept that the [appellant] would have mentioned only the demand that he write anti-Blackwater articles when this claim was discussed with the delegate if he had been told that he must work for them whenever required after his release or that he would have failed to mention Blackwater during the hearing if this was the main demand made by the Taliban prior to his release. 73. Thirdly, I find the claim that the [appellant] was detained by the Taliban because of his marriage or his perceived association with Blackwater or perceived support for or cooperation with the US or the Pakistani government implausible. While I have seen reports that groups such as the Taliban use kidnapping as a source of revenue or to secure the release of their arrested activists, I am unaware of any evidence which suggests that the Taliban kidnap journalists or anyone else in order to force them to cooperate with or work for the group. I also note that the Pakistan Press Foundation report provided by the [appellant] on 10 July 2016, only three journalists were abducted in Islamabad between 2001 and 2015, which suggests that kidnapping of journalists in Islamabad for any reason is a rare occurrence. 7 4. I have also considered the [appellant]'s claim that he and his family have been receiving telephone threats from extremists from at least 2004 because of his work as a journalist and his marriage to a Christian woman. I do not accept these claims. 75. In the first place, while the [appellant] has general claims about being threatened by extremists in all of his submissions and provided police reports regarding these claims at the end of his interview with the delegate, he said nothing which suggested that he had continued to receive death threats from extremists until his departure from Pakistan. If he and his family had been receiving such threats for a prolonged period prior to his departure from Pakistan, I believe he would have provided specific information about this in his protection visa application and when the delegate questioned him about his life in Pakistan. I consider his failure to do so a strong indication that he has not provided honest evidence regarding this claim. 76. Secondly, if the [appellant] had received repeated death threats from extremists from 2004 onwards and feared that these threats might be carried out, I believe he would have sought protection when he visited the US in 2010. 77. Thirdly, I found the [appellant]'s evidence regarding these threats confused and unconvincing. As noted above he provided the Department and the Tribunal with a copy of a police report dated 2004 which states that he had…received death threats which he believed were linked to his work as a journalist. At the hearing he first claimed he had been threatened by the Taliban in 2004 because they viewed him as pro-Musharraf and because of that he ceased writing articles supporting them when Musharraf came to power, but later claimed that these threats were primarily linked to his work for Christian communities. In addition, according to his protection visa application he reported all the threats made against him to the police, but he has only provided copies of these reports from 2004 and 2006. When asked why he had no other reports at the hearing he was unable to provide a satisfactory explanation. The [appellant]'s claim that the callers identified themselves as being members of a number of different groups is at odds with the information in the police reports which states that the callers did not identify themselves. In the submission dated 10 July 2016 the [appellant]'s representative claimed on his behalf he and his wife separated because she was feeling insecure for herself and her children. However, he also provided a copy of his divorce papers [that] state that his wife was seeking a divorce because he was violent and did not care for her and her children. 78. Finally, I find the [appellant]'s claim that the people who called to threaten him identified themselves as being from a number of different groups including the Taliban to be farfetched and implausible. There is nothing in the evidence before me which suggests that the [appellant]'s views or activities or associations would have attracted this level of attention. 79. After considering all the relevant evidence and taking account the [appellant]'s willingness to concoct claims and general lack of credibility, I do not accept that he was repeatedly threatened by extremist groups by telephone from 2004 until his departure from Pakistan or that his family continued to be threatened after his departure. 80. In reaching this conclusion I have considered the police reports and other documents provided by the [appellant] in support of this claim. However, they are photocopies of mostly hand written documents which could have easily been manufactured and I have given them no weight. 81. In any event, even if I accept these documents at face value (which I do not), they relate only to isolated threats in early 2004 and October 2006 and do not support the [appellant]'s claim that he was repeatedly threatened following this time or that he fears a real chance of experiencing serious harm if he returns to Pakistan now. There is no credible evidence before me which suggests that the [appellant] was threatened or harmed because of his work as a journalist after 2004 or because of his marriage after 2006. I also note that the [appellant] and his Christian wife divorced in 2012, thus satisfying the demands allegedly made by the extremists. 82. As noted above, the [appellant] also claims that the first child of his marriage to a Christian woman was killed by extremists because he was married to a Christian. While his son may have tragically died of head injuries in 2007, I do not accept that he was murdered by extremists. 83. While it is true that the [appellant] mentioned his son's death in his protection visa application and during his Department interview, he provided no details of the reasons for his death or who was responsible. If the [appellant]'s one year old son had been brutally murdered by extremists in 2007 as he now claims I believe that he would have provided a detailed account of this in his initial application and during his interview with the delegate. In reaching this conclusion I have taken into account the fact that the delegate did not ask the [appellant] for details of his son's death. However, the [appellant] did not hesitate to provide details of other matters even when not asked specific questions and I do not accept he would have failed to give a full account of his son's death to the delegate if he had been murdered. 84. In addition, I note that the [appellant] indicated during his interview with the delegate that his son was killed between the time he was kidnapped in 2008 and his visit to the US in 2010, which is at odds with his later evidence that his son died in 2007. More significantly, the [appellant] claimed at the hearing that his son had been killed by the Taliban, but also claimed that LeJ, a different extremist group had claimed responsibility for his death. The [appellant] is a journalist and claims to have written about extremists groups. In these circumstances I do not believe he would have been confused about the group which was responsible for his son's death. While neither of these problems would by themselves have caused me to reject this claim I find them a further indication that he has not provided an honest account of his son's death. 85. In the circumstances set out above, and in light of my finding regarding the credibility of the [appellant]'s claims regarding being threatened by extremists because of his marriage and his demonstrated willingness to concoct claims I do not accept that his son was murdered by extremists because of his marriage to a Christian or for any other reason. 86. I have also considered the [appellant]'s claim that his Christian wife was threaten[ed] while he was in the US in 2010. However, in light of my overall findings regarding the [appellant]'s lack of credibility and willingness to concoct claims, I also reject this claim. 87. After considering all of the relevant evidence I do not accept that the [appellant] was threatened or harmed by the Taliban or any other extremist group because of his work as a journalist or his marriage to a Christian or for any other reason prior to his departure from Pakistan. I find that he concocted all of these claims in an attempt to obtain a protection visa. 88. Nor do I accept that the [appellant] would be threatened or harmed by extremists in Pakistan because of the two articles he has written while in Australia. The article which was translated mostly discusses extremism in Australia. The other apparently reports on an assassination by the Taliban. I am not aware of any evidence which suggest[s] the Taliban or any other extremists are engaged in a campaign against journalists who occasionally write articles…about their activities. I do not accept that there is a real chance that the Taliban or any other extremist group in Pakistan would seek to harm the [appellant] because of these articles if he returned to Pakistan. 7 With minimal exceptions, the Tribunal considered that the appellant had embellished most of the claims upon which his Visa Application was premised. It did not accept that he was a truthful witness, nor that he was someone who satisfied either of the criteria provided for in ss 36(2)(a) and 36(2)(aa) of the Act, upon which his Visa Application rested. 8 By his Judicial Review Application in the FCCA, the appellant contended that those findings were the product of jurisdictional error, which he invited the primary judge to correct by means of the grant of prerogative relief. Two grounds were advanced to that end, namely (errors original): 1. The Tribunal erred in that it failed to comply with s. 425(1) of the Migration Act. Particulars (a) Failure to disclose to the [appellant] and invite comment on specific aspects of an [appellant]'s account, that the Tribunal considered important to the decision and to be open to doubt, being: (i) Whether the [appellant]'s son was killed by the Taliban; (ii) Whether the [appellant] had been threatened because of his marriage to a Christian woman; (iii) Whether the [appellant] had been imputed with a political opinion opposed to that of the Taliban because of the employment of certain of his wife's relatives by western embassies and in one case by Blackwater Corp. … 3. The default of the Minister in not being able to produce what the Tribunal member described as "comprehensive notes" of the delegate's interview with the respondent when required by Notice of Produce to do so, had the consequence that the Court is unable to exercise of the jurisdiction conferred upon it by s. 476 of the Migration Act. 9 The primary judge rejected both grounds. As the appellant confirmed in his oral submissions before me, his appeal proceeds on the basis that the primary judge erred in doing so. In other words, he maintains that the Tribunal's Decision was the product of the same jurisdictional errors of which he complained by means of his Judicial Review Application. That being so, it is not necessary that I should here set out the primary judge's reasons for rejecting those contentions. If, as the appellant maintains, the Tribunal's Decision was the product of either or both of the species of jurisdictional error that he alleged, it will follow that the primary judge erred in concluding otherwise and the appeal should succeed. If, however, the Tribunal's Decision was not affected by any such error, then the primary judge will have been correct so to have decided and the appeal should fail. Either way, it is upon the reasoning of the Tribunal that this court's attention should fix. 10 By his first ground, the appellant maintains that the Tribunal did not understand the claims that he had advanced in support of his Visa Application, did not explore those claims with him at the hearing that it conducted, and/or did not have regard to all of the material that he provided in support of them. 11 Before me, the appellant submitted that the Tribunal ought to have accepted that, if he returned to Pakistan, he would be at risk of relevant persecution or harm such that his Visa Application should have succeeded. Intending no criticism of the appellant or the submissions that he advanced in support of his appeal, those submissions did not ascend any higher than to suggest that the Tribunal was wrong not to accept the presence of those relevant risks in the appellant's case. In essence, the appellant invited the court to review his Visa Application on its merits. There is no shortage of authority that forbids me from embarking upon that course. 12 In the FCCA, the appellant maintained that the Tribunal's Decision was the product of jurisdictional error because the Tribunal, in effect, deprived him of the hearing to which he was entitled under s 425 of the Act. As I apprehend the submissions that were advanced below, it was suggested that the Tribunal ought to have invited the appellant to address some concerns that the Tribunal ultimately expressed about the truthfulness of his claims about his son's murder, the threats that he faced as the husband of a Christian and the political opinions with which he claimed that he was imputed on account of his work as a journalist. 13 Again intending no criticism of the appellant, it is not entirely clear that his first ground of appeal before me replicates that challenge. Assuming that it does, however, I would reject it for precisely the same reasons as the primary judge did: FCCA Judgment, [64]-[68]. The Tribunal was not obliged to alert the appellant to any concerns that it had about his credibility CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 524-525 [92]-[93] (McKerracher, Griffiths and Rangiah JJ). It did not breach any obligation conferred upon it by s 425 of the Act and its decision cannot, on that account, be impugned as the product of jurisdictional error. 14 The appellant's first ground of appeal is not made out. 15 The appellant's second ground of appeal seems to replicate the third ground that he advanced before the FCCA. It fixes upon some notes to which the Tribunal apparently made reference during the hearing that it conducted. Those notes were, apparently, produced by a representative of the Minister for the purposes of the Delegate's Decision. The appellant asked that they be produced to him for the purposes of his Judicial Review Application but they were unable to be located. Instead, the Minister called evidence below from the Minister's delegate, who explained as much. The primary judge accepted that explanation. The Minister's delegate also explained that, to the extent that those notes incorporated information that was relevant to the appellant's Visa Application, that information found expression in the Delegate's Decision. Again, the primary judge accepted that evidence. Her Honour also inferred, from the manner in which the Tribunal expressed its conclusions (and, in particular, its adverse credibility findings), that the notes in question, if they existed, did not contain anything of any relevance to the Tribunal's findings and conclusions: FCCA Judgment, [88] (Judge Emmett). 16 It is not apparent—and, again with respect, the appellant's submissions did not clearly identify any reason—why those factual findings of the primary judge should be disturbed on appeal. It is, as the Minister freely accepted, regrettable that the notes in question could not be produced (if they existed); but that circumstance alone is not sufficient to warrant a finding that the Tribunal took account of any irrelevant matters, or otherwise committed jurisdictional error. The appellant's claim that "[t]he way that the Tribunal…conducted the review deprived the [appellant] of the possibility of proving how the criteria for a protection visa had been met" is plainly wrong: the appellant was at liberty to advance at the hearing before the Tribunal whatever information or submission he wished to, including in response to what the Tribunal told him was indicated by the notes to which reference was apparently made. 17 The appellant's submission appears to be that, because he is unable to verify that the notes in question said what the Tribunal apparently told him they said, that should require a finding on judicial review that the Tribunal's Decision was a product of jurisdictional error. There is a degree of opportunism to that submission. It effectively translates to guaranteed success on judicial review in circumstances where, by reason of carelessness or administrative error on the Tribunal's or Minister's part, certain information cannot be produced; even if evidence is later led and accepted as to what that information did or didn't say. It is, to say the least, not apparent to me how that submission could fairly be accepted. In that regard, I respectfully agree with and adopt the conclusion of the primary judge: FCCA Judgement, [88]-[94]. 18 The appellant's second appeal ground is not made out. 19 The appeal will be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate: Dated: 13 February 2020