FEDERAL COURT OF AUSTRALIA BXV17 v Minister for Home Affairs [2020] FCA 195 Appeal from: BXV17 v Minister for Home Affairs [2019] FCCA 2520 File number(s): VID 1107 of 2019 Judge(s): O'CALLAGHAN J Date of judgment: 27 February 2020 Legislation: Migration Act 1958 (Cth) ss 36(2), 65 Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; (1994) 34 ALD 347 WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 Date of hearing: 5 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 46 Counsel for the First Appellant: The first appellant appeared in person for the appellants Counsel for the First Respondent: Ms E Smith Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS VID 1107 of 2019 BETWEEN: BXV17 First Appellant BXX17 Second Appellant BXY17 Third Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: O'CALLAGHAN J DATE OF ORDER: 27 February 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: 1 The appellants, a husband, wife and their minor daughter, are citizens of Pakistan. They seek to appeal orders of the Federal Circuit Court of Australia, dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister to refuse to grant to the appellants protection visas, under the Migration Act 1958 (Cth) (the Act). 2 The Notice of Appeal raises two grounds of appeal, viz that the primary judge erred in failing to find that the Tribunal committed jurisdictional error because: (a) There was no evidence for the [Tribunal's] finding that the First Appellant's ex-wife (Ms Iqbal) was not Sunni or Pashtun [67], particularly in circumstances where the majority religion in Pakistan is Sunni Muslim and most Mohajirs are Sunni Muslim. (b) The [Tribunal] failed to consider an integer of the First Appellant's claim, being generalised sectarian violence towards Shia Muslims in Pakistan [and therefore] made a decision that was legally unreasonable. 3 The appellants did not file any written submissions. The first appellant appeared for himself, and his wife and child, at the hearing. When I asked him if he wished to say anything in support of his application, he in substance repeated the two grounds of appeal contained in the Notice of Appeal, and raised another point about the Tribunal's refusal to contact a person who he said was in charge of a political movement called the Muttahida Qaumi Movement (or MQM). That was a point raised before and dealt with by the primary judge. I shall deal with it later in these reasons. 4 The first appellant was born in Karachi in 1985. He arrived in Australia in June 2008 on a student visa, and has since held three such visas. The second appellant is the first appellant's wife. They married in June 2010. She arrived in Australia in August 2012 as a dependant on the first appellant's student visa. Their daughter, the third appellant, was born in Australia in June 2013. 5 The appellants applied for protection visas in February 2014. The second and third appellants were listed as dependants on the first appellant's application, though the second appellant later submitted her own claims for protection. 6 In his initial written application, the first appellant claimed to fear being harmed: (a) by the family of his first wife, Ms Sana Iqbal, whom he married in 2010, since they belonged to extremist religious organisations, including the Taliban and Lashkar-e-Jhangvi (LEJ), and had threatened to kill him and his brother; and (b) because of his religion as a Shia Muslim. 7 The second appellant claimed to fear being harmed by the family of her husband's first wife (Sana Iqbal), who were said to want to kill her the name of honour. 8 On 8 May 2015, the delegate refused to grant visas to the appellants. 9 In May 2015, the appellants applied to the Tribunal for review of the delegate's decision. 10 The first appellant's registered migration agent provided written submissions and supporting documents to the Tribunal. 11 The written submissions summarised the basis for his claims for protection as follows: 1. The [first appellant] is Shia and fears he will be harmed because of his religion. 2. The [first appellant]'s first wife, Sana lqbal and her family have links to extremist Sunnis and he fears they will kill him if he returns to Pakistan. 3. Sana Iqbal's family will kill him because of honour as he has married again. 4. His family in Pakistan have been harmed by Sana Iqbal's family and [they] have threatened to harm the [first appellant] and his immediate family. 12 The submissions made an additional claim that the first appellant had been politically involved with the Khidmat-e-Khalq Foundation, a sub-group of the MQM. 13 The first and second appellants appeared at the hearing before the Tribunal on 9 September 2016, with the assistance of their migration agent and an Urdu interpreter. (At the hearing of this appeal, an interpreter was available, but the first appellant said that he did not want any such assistance.) The Tribunal also took evidence from the first and second appellants and from the first appellant's mother in Pakistan, by telephone. 14 The Tribunal affirmed the decision not to grant protection visas to the appellants by a decision dated 31 March 2017 (Case Number 1506905). 15 The Tribunal gave detailed reasons for doing so. I adopt the following summary of those reasons from the helpful written submissions prepared by counsel for the Minister, Ms E Smith. 16 The Tribunal accepted that the first appellant married Sana Iqbal and that they were now divorced. However, it did not accept that Ms Iqbal's family were powerful and influential, or that they posed a threat to the appellants. 17 The Tribunal did not accept that a powerful and influential Sunni Pashtun family with links to extremists or terrorists would wish the first appellant, a lower middle-class Shia Mohajir, to marry into their family. The Tribunal also did not accept that the Iqbal family wanted to recruit the first appellant for terrorism, relying on country information which indicated that such extremist organisations have plenty of willing recruits. Further, the Tribunal did not accept that the Iqbal family wanted the first appellant to marry Ms Iqbal so that she could obtain a visa to Australia, if they were as strong financially and politically as he had claimed. The Tribunal also did not accept that Ms Iqbal's family wanted to extort money from his family, being a lower middle-class family. 18 The Tribunal considered that the appellants' delay in applying for protection visas, approximately 18 months after his wife arrived in Australia, was relevant to the genuineness, or depth, of their claimed fear of persecution. Due to country information about the prevalence of document fraud in Pakistan, the Tribunal put greater weight on the difficulties the member had with the appellants' evidence than on documents which they had produced. The Tribunal did not accept that Ms Iqbal's family were Sunni or Pashtun, or that they have links to extremist or terrorist organisations, or that they have influence or connections with political figures, law enforcement agencies or underworld figures. The Tribunal therefore did not accept that members of Ms Iqbal's family had persecuted the appellants, or would do so in the reasonably foreseeable future. 19 The Tribunal accepted that the first and second appellants are Urdu-speaking Mohajirs. Based on country information that the Mohajir are the dominant community in Karachi and evidence of the appellants' employment history, the Tribunal did not accept there was a real chance that the appellants would face discrimination amounting to persecution due to being Mohajirs. 20 Due to inconsistencies in the first appellant's evidence about his political activities, the Tribunal did not accept that he had been involved in political activity in Karachi. 21 The Tribunal accepted that the first appellant was a Shia Muslim and that the second appellant was a Sunni Muslim. Based on country information, the Tribunal did not accept that the first and second appellants would be persecuted because their marriage is an inter-sect marriage if they were to return to Pakistan. 22 The Tribunal noted that the Department of Foreign Affairs and Trade assessed there to be a low risk of sectarian violence for most Shia Muslims in Pakistan. The Tribunal accepted that there had been sectarian attacks on Shia Muslims in Karachi in the past, and that there would no doubt be such attacks in the future. However, given the first appellant's evidence that he did not practise his religion strictly, the Tribunal considered there was only a remote chance that he would be affected by such sectarian attacks if he were to return to Pakistan. 23 Considering the appellants' circumstances cumulatively, the Tribunal did not accept that there was a real chance that they would be persecuted for a Convention reason if they returned to Pakistan. 24 In light of these findings, the Tribunal did not accept there was a real risk that the appellants would suffer significant harm because of the first appellant's failed marriage to Ms Iqbal, or because of his marriage to the second appellant, because they are Urdu-speaking Mohajirs, or because of any political opinions they hold. Based on country information, the Tribunal did not accept there was a real risk that the appellants would suffer significant harm because their marriage is inter-sect. 25 The Tribunal accepted that there have been sectarian attacks against Shia Muslims in Karachi in the past. However, on the basis of the first appellant's evidence that he does not practise his religion as a Shia Muslim strictly, it did not accept there was a real risk that he would suffer serious harm due to sectarian attacks. 26 The Tribunal accepted, on the basis of country information, that there was a moderate level of generalised violence in Karachi. The Tribunal did not accept that this was a risk faced by the appellants personally, rather than the population of Pakistan generally. The Tribunal therefore considered that there was no real risk that the appellants would suffer significant harm from generalised violence in Karachi. 27 Considering the appellants' circumstances cumulatively, the Tribunal did not accept that they faced a real risk of significant harm. 28 Therefore, the Tribunal was not satisfied that the appellants satisfied the criteria for a protection visa under the Act. 29 The appellants then sought judicial review of the Tribunal's decision in the Federal Circuit Court. The first two grounds of review were effectively the same as the grounds of appeal in this proceeding (see [2] above). 30 The third ground of judicial review was that the first appellant had applied for assistance through Victoria Legal Aid and was waiting for a decision. The primary judge held such a ground of review did not identify any jurisdictional error. That finding is not challenged. 31 The first appellant represented himself and his family at the hearing. 32 At the hearing in the Federal Circuit Court, the first appellant raised a fourth ground of review: that the Tribunal failed to consider his claim that he feared harm due to his membership of the MQM, and that the MQM was banned in Pakistan. That is the third ground (advanced at the hearing) in the appeal in this court. 33 The primary judge dismissed the appellants' application. 34 With respect to the fourth ground raised before the Federal Circuit Court, the primary judge held that the Tribunal had considered the first appellant's claims about the MQM. Further, the primary judge held that the Tribunal's decision not to interview a person who the first appellant said had been in the 'unit-in-charge' of the MQM was not a jurisdictional error. The primary judge held that the Tribunal was not obliged to enquire unless there was an easily ascertainable fact critical to the review, and the Tribunal had given reasonable and intelligent reasons for not pursuing such investigation, namely that the Tribunal would not be able to verify independently that person's role. 35 In this court, the appellants' first ground concerns [67] of the Tribunal's decision, which relevantly states: While, as I have said, I accept that [the first appellant] married a woman named Sana Iqbal and that they are now divorced, I do not accept that Ms Iqbal's family have the character he has given them nor that, through their power and influence, they have been able to make all the events happen which have been claimed. I put greater weight on the problems which I have with the [appellants]' evidence than I do on the documents which they have produced. I do not accept that Ms Iqbal's family are Sunni or Pashtun or that they have links to extremist or terrorist organisations like the LEJ or the Taliban. (Emphasis added). 36 The primary judge addressed this ground at [27] to [30] of his reasons. His Honour held that there was no jurisdictional error of the type alleged because: 28. Sections 65 and 36(2) of the Act require the Tribunal to reach a level of satisfaction in relation to, among other things, whether the criteria prescribed for the grant of a visa are met. The Tribunal did not reach a level of satisfaction on the evidence before it that Ms Iqbal's family were Sunni or Pashtun. The Tribunal set out the reasons for not being so satisfied at [60] to [67] of [its] decision record. The Tribunal did not make a finding that [Ms Iqbal's family] were not Sunni or Pashtun. 29. As a decider of factual issues, the Tribunal had to assess this particular claim advanced in support of the [appellants]' case. In substance, the Tribunal concluded that the claim was exaggerated. The onus was on the [appellants]. A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out [citing Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; (1994) 34 ALD 347, 348]. 37 As Ms Smith correctly submitted, those reasons do not disclose jurisdictional error. The Tribunal did not find that Ms Iqbal was not Sunni or Pashtun. It said that it was not satisfied that the appellants had established that Ms Iqbal was Sunni or Pashtun. The primary judge's assessment of the Tribunal's reasons was correct. The appellants' claim, that there was "no evidence" on which the Tribunal could make its finding at [67] of its reasons, is therefore based on the false premise that the Tribunal has made a finding about whether Ms Iqbal was Sunni or Pashtun, when it had not. 38 The "no evidence" ground of judicial review applies where a decision-maker makes a finding which requires positive evidence, not where a decision-maker merely disbelieves the evidence because of surrounding circumstances. As the Full Court explained in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261, 265 [17]: Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said the Tribunal member's view was perverse or illogical. Whether rightly or wrongly, she regarded a critical portion of the appellant's evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. We do not think the 'no evidence' ground has application to such a situation. (Emphasis added.) 39 Having found an applicant's evidence not to be credible, it was therefore open to the Tribunal to find that the criteria in s 36(2) of the Act were not satisfied, without requiring rebutting evidence to prove that a particular factual assertion was not made out. 40 The second ground must also fail, for the following reasons submitted by counsel for the Minister. 41 The primary judge found that the Tribunal had identified the first appellant's claim in relation to general sectarian violence, at [5] of its reasons, and had put the relevant country information (which indicated there was a low risk to Shia Muslims) to him. His Honour held that the Tribunal had not failed to consider this claim: rather, the Tribunal had noted that while there had been attacks in Karachi in the past (and it was likely there would be more in the future), there was only a remote chance that the first appellant would be affected by such attacks. 42 The Tribunal obviously did not fail to consider the first appellant's claim regarding generalised sectarian violence towards Shia Muslims, and the Federal Circuit Court did not err in finding that the Tribunal did not fail to consider this claim. 43 In relation to the third ground (the MQM point) the relevant paragraphs of the Tribunal's reasons are as follows: 70. In his statement apparently produced at the Departmental interview on 17 March 2015 [the first appellant] said that he had worked for a local television channel, Bells TV, as an anchor person from 2005 to 2008 and that in this capacity he had interviewed many parliamentarians. At the hearing before me he said that this had been a local cable television station and that he had conducted interviews with the MQM leadership and he had created some documentaries about their work. Although he initially said that Bells TV had been working for the Khidmat-e-Khalq Foundation, a sub-unit of the MQM, he said subsequently that the television station itself was not a sub-unit of the MQM. He said that he had worked for the Khidmat-e-Khalq Foundation, collecting the skins of animals, but he had not been a member of this organisation. He also said that he had been involved in election campaigning for the MQM, organising posters, chalking and arranging corner meetings. He said that when Altaf Hussain had given speeches there had been no specific task assigned to specific people but everyone had taken part in organising this. 71. [The first appellant] provided what he said was the name of the person who had been the 'Unit-in-charge' of the MQM when he had been involved and he said that he could provide the Tribunal with this person's telephone number. I did not pursue this inquiry because there would have been no independent confirmation (that is, confirmation apart from the evidence of [the first appellant] and of the person concerned) that this person was in fact the 'Unit-in-charge' of the MQM when [the first appellant] claims to have been involved. I consider that [the first appellant] has had ample opportunity to put forward all his claims and, as I put to him (and as referred to in the decision under review, a copy of which he provided to the Tribunal along with his application for review), he said previously that he had not been involved in any political activity in Pakistan. [The first appellant] said that the situation when he had applied for a protection visa in 2014 had not been the same as it was now but this obviously does not affect whether it is true that [the first appellant] was involved in political activity or not. 72. [The first appellant] also said that he had stated at the interview with the primary decision-maker that he was not politically active because he had not been a member of any political party. He said that every person who belonged to the Mohajir community in Karachi had been doing the same thing but in light of the inconsistency in his evidence regarding his political involvement I do not accept that he was involved in political campaigning for the MQM, putting up posters, chalking, arranging corner meetings or organising Altaf Hussain's speeches, nor do I accept that he worked for the Khidmat-e-Khalq Foundation, a sub-unit of the MQM, collecting the skins of animals. I do not accept on the evidence before me that [the first appellant] or any other member of his family has been involved in political activity in Karachi and I do not accept on the evidence before me that there is a real chance that he or his wife or their daughter will be persecuted for reasons of their real or imputed political opinion in support of the MQM if they return to Karachi now or in the reasonably foreseeable future. 44 The primary judge dismissed the MQM ground in these terms: 34. The Tribunal considered the [first appellant]'s claims with respect to MQM. At [70] to [72] of the decision record, the Tribunal sets out the claims that were made, and considers those claims. 35. The [first appellant]'s claim centred on [71] of the decision record where the Tribunal stated it did not … interview the person who had been in the 'unit-in-charge' of the MQM as it would be unable to independently verify the person and whether they were the head of the 'unit-in-charge' of MQM. The Tribunal also stated that the [first appellant] had been provided with ample opportunity to put his claims forward. 36. The Tribunal is not under a duty to enquire unless there is an easily ascertainable fact critical to the review [citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123, 1129 [25]]. The Tribunal gave reasonable and intelligible reasons for not pursuing such investigation, and therefore the decision is not affected by jurisdictional error. 45 There is no error disclosed in those reasons, jurisdictional or otherwise. 46 The appeal must therefore be dismissed, with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 27 February 2020