Aam17 v Minister for Immigration

[2019] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAM17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1567

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal made an unreasonable conclusion and/or addressed a wrong question – whether the Tribunal was speculative in its reasoning – whether the Tribunal conflated its findings and/or the law – whether he non-disclosure of the certificate gave rise to any practical injustice – no jurisdictional error – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: AAM17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 2 of 2017

Judgment of: Judge Street

Hearing date: 16 May 2019

Date of Last Submission: 16 May 2019

Delivered at: Sydney

Delivered on: 16 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr P Corbould
Australian Government Solicitor

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDERS: 16 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 2 of 2017

AAM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 December 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant was also found to be of Mohajir ethnicity. The applicant claimed to fear harm based on his Mohajir ethnicity, speaking the Urdu language, his Sunni religion and the generalised violence and security situation in his home region.

3. On 29 May 2015, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa. On 2 June 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

4. On 3 June 2015, a s 438 certificate was issued by the Department to the Tribunal claiming the disclosure of particular information would be contrary to the public interest because the relevant folios contain information relating to internal working documents and business affairs. The documents the subject of this certificate have been tendered into evidence and marked Exhibit B.

5. By letter dated 10 August 2016, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments. On 29 September 2016, the applicant attended the hearing with the assistance of an interpreter.

6. The Tribunal in its reasons identified the background to the visa application and set out the relevant law.

7. The applicant’s migration history is one where he first travelled to Australia on 16 February 2009 as the holder of a Business Short Stay (subclass UC-456) visa. On 2 March 2009, the same day the visa ceased, the applicant departed Australia. On 16 June 2010, the applicant arrived in Australia for a second time as the holder of a Business Short Stay (subclass UC-456) visa. On 15 September 2010, the same day the visa ceased, the applicant departed Australia. On 10 June 2012, the applicant arrived in Australia for a third time as the holder of a Business Short Stay (subclass UC-456) visa. This visa ceased on 26 March 2013.  The applicant departed Australia on 9 September 2012 and returned to Australia on 15 September 2012. The applicant departed Australia again on 14 December 2012 and returned to Australia on 26 December 2012.

8. On 25 March 2013, the applicant applied for a Student (subclass TU-572) visa. On 2 April 2013, this visa was refused by the delegate. On 9 February 2014, the delegate’s decision was affirmed by the Migration Review Tribunal. The applicant applied for judicial review of the Migration Review Tribunal’s decision on 11 March 2014 but withdrew that application on 21 July 2014. It was not until 24 July 2014 that the applicant applied for a protection visa.

9. The Tribunal identified that the applicant’s wife continues to reside in his home region, his mother remains in the family home with his younger brother, he has a sister living in the United Kingdom, and his other sisters live in Pakistan with their husbands in his home region.

10. The applicant obtained a Bachelor of Arts in 2009 in Pakistan and has also obtained a Diploma in Refrigeration and Air−conditioning which he completed in 2004 in Pakistan and further religious education studies.

11. The Tribunal summarised the applicant’s evidence, including the issues raised by the Tribunal with the applicant in relation to his delay in applying for a protection visa. The Tribunal referred to the applicant claiming to fear for his life following being detained in December 2012. The Tribunal referred to the applicant’s claim that it was not until his brother was also detained that he realised it was not safe to return.

12. The Tribunal referred to the applicant’s claims that he had difficulty obtaining a passport but noted that he had been able to renew his passport. On the basis of country information, the Tribunal found that the difficulties experienced by the applicant in obtaining his passport were not due to his ethnicity or language, but due to high levels of corruption within government in Pakistan.

13. The Tribunal referred to the applicant’s claim that he was kidnapped by the Pakistani police in December 2012, held for 24 hours, and released when a substantial bribe was paid. The applicant also made claims in relation to his brother being kidnapped by the police on two occasions. The applicant also asserted that there was a declaration made by the government that Mohajirs should be picked up and detained. The Tribunal referred to the lack of country information indicating an edict by the government to pick up and detain Mohajirs for any reason. The Tribunal found that the evidence before it did not indicate that the police specifically targeted Mohajirs and Urdu speakers for arrest and detention.

14. The Tribunal found the applicant’s description of his arrest in December 2012 to be vague and inconsistent. The Tribunal referred to inconsistent evidence in relation to the applicant receiving a phone call from his mother. The Tribunal found the applicant’s evidence in relation to the arrest of his brother on two occasions to be very vague and did not accept the applicant’s explanation that he was only aware of this incident because his mother informed him later.

15. The Tribunal provided the applicant an opportunity to provide further information at the hearing in relation to his claims that he had been bashed and assaulted because of his ethnicity and language. The applicant did not do so. The Tribunal found the applicant’s claims were of a general nature in relation to being discriminated against because of his ethnicity and language.

16. The Tribunal referred to the substantial delay by the applicant in seeking protection. The Tribunal considered the applicant’s evidence to be unconvincing, especially as he applied for a student visa rather than a protection visa despite claiming to be fearful. The Tribunal did not accept that it took 18 months for the applicant to prepare his papers. The Tribunal also found that, despite the applicant’s claims to fear harm in Pakistan on the basis of his ethnicity and language, the applicant returned to Pakistan from Australia on several occasions.

17. The Tribunal did not accept the applicant’s evidence that he was detained by police in 2012, or that his brother was detained by the police in 2013 and 2015 simply for being a Mohajir and Urdu speaker. The Tribunal referred to country information and did not accept that the applicant has been harmed or discriminated against in the past because he speaks Urdu.

18. The Tribunal referred to the applicant holding a National Identity Card and having obtained a passport. Whilst the Tribunal accepted that the applicant may have experienced some discrimination on the basis of his Mohajir ethnicity, the Tribunal found that the discrimination did not rise to the level of serious or significant harm given the applicant’s vague and limited evidence. The Tribunal did not accept that there is a real chance the applicant will be harmed if he returns to his home region now or in the reasonably foreseeable future for reasons of his Mohajir ethnicity or Urdu language.

19. The Tribunal referred to the applicant’s Sunni religion. The Tribunal did not accept there is a real chance that the applicant will be subjected to serious harm should he be returned to Pakistan now or in the reasonably foreseeable future for reason of his Sunni religion.

20. The Tribunal referred to the applicant’s claim that he would be at risk of serious harm because of the high rate of crime and generalised violence in his home region. The Tribunal referred to country information. The Tribunal did not accept that the applicant has experienced harm through or because of generalised violence, crime or extortion, or gang-related violence in the past. The Tribunal also considered the information before it about recent country information and the security situation. The Tribunal found the chance of the applicant suffering serious harm because of or as a result of generalised violence, crime, insecurity, or sectarian or political conflict to be remote and far-fetched.

21. The Tribunal did not accept that the applicant would be subjected to any harm for reasons of his Mohajir ethnicity, Urdu language, Sunni religion or due to generalised violence, security, or law and order situation in his home region, or because of any other related matter, or due to a combination of any or all of these reasons.

22. The Tribunal did not accept that there is a real chance the applicant will suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returns to his home region now or in the reasonably foreseeable future.

23. The Tribunal found that there is not a real chance the applicant will suffer serious harm for a 1951 Refugee Convention (“the Convention”) reason if returned to Pakistan now or in the reasonably foreseeable future. The Tribunal found that the applicant does not have a well-founded fear of persecution in Pakistan.

24. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 3 January 2017. On 15 March 2017, a Registrar of the Court made orders which, together with the orders of a Judge of this Court made on 10 December 2018, gave the applicant an opportunity to file an amended application, affidavit of evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that the Tribunal had not properly read the whole of his evidence and had not properly considered all of his claims and submissions. There was no part of the applicant’s claims or submissions identified by the applicant that the Tribunal did not deal with. The applicant’s submissions from the bar table reflect disagreement with the adverse findings by the Tribunal.

4. The Tribunal provided logical and rational reasons in support of its adverse findings that were dispositive of the applicant’s claims. Those adverse findings cannot be said to lack an evident and intelligible justification. The applicant’s submissions from bar table otherwise invited the Court to engage in merits review. This Court has no power to review the merits of the Tribunal’s decision and cannot determine the matter on compassionate or discretionary grounds.

The grounds

1. The grounds in the application are as follows:

   GROUND 1

   1. The Administrative Appeal Tribunal ("the Tribunal") reached conclusions on the evidence before it that were so unreasonable that no reasonable Tribunal could have reached those conclusions.

   Particulars

   a) The Tribunal’s findings of fact in paragraph 91 that, “With regard to his claim to fear being harmed for reasons of his Mohajir ethnicity and as an Urdu speaker, in light of its earlier reasons with regard to there not being a real chance that he would suffer harm for those reasons, the Tribunal considers that there are no substantial grounds for believing that there is a real risk that they will suffer significant harm in that way” was based on no evidence and was so unreasonable that no reasonable Tribunal could have made such findings.

   GROUND 2

   2.  The Tribunal’s conclusion in paragraph 93 for rejecting the claim was entirely speculative.

   Particulars

   a) The Tribunal speculated that, “The Tribunal has considered whether the applicant would be at risk of significant harm because of the general political, religious and criminal violence and the presence of some terrorist groups in Karachi. However, as discussed, the level of violence has declined in recent years and DFAT currently assess that there is a moderate level of generalised violence in city. While this level of violence is no doubt disturbing for people living in Karachi, the Tribunal does not accept that it means that the applicant, who has not been a victim of such violence for any reason in the past, faces a real risk of suffering significant harm on return to Pakistan because of the level of general violence or the presence of some terrorist groups in Karachi”. The tribunal failed to assess my personal situation of the harm I am facing because of my personal threats and circumstances. The tribunal has considered my harm in generalised scenario under political, religious and criminal elements whereas I am suffering real risk of harm which fall within the section 36 of the Migration Act 1958.

   GROUND3

   3.  I submit that the Tribunal committed jurisdictional error in its consideration of claims relating to complementary claims with s36(2)(a) claim. The Tribunal has conflated the findings in the Convention nexus and adopted it as complementary protection claim. I submit that the Tribunal did not address the issue of complementary protection but relied on the claims in relation to the Convention rather that satisfying whether I am at risk of significant harm for the reasons such as being from the minority sect who are otherwise accepted to be at risk of harm. The Tribunal committed jurisdictional error when conflated the issues relating to complementary claims with s 36(2)(a) claim. The Tribunal failed to take into account all personal circumstances and erred in the application of “real risk” test.

   The Tribunal failed to address whether I was in need of complementary protection and addresses the matters required by the sections relating to complementary protection. The Tribunal simply conflated its findings in respect of the applicant’s protection visa claim. The Tribunal is to assess other risks such as localised risks were taken into account and failed to assess relation to whole of Pakistan.

   I submit that ‘significant harm’ for these purposes is defined in s36(2A), s5(1). A person will suffer significant harm if he or she will arbitrarily deprived of their life; or death penalty will be carried out on the person; or person will be subject to torture; or to cruel or inhumane treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhumane treatment or punishment’, ‘degrading treatment or punishment’, ‘torture’, are further defined in s5(1) of the Act.

   4. I strongly believe that I am a Refugee according to Convention. I have well-founded fear of being persecuted for Convention related reasons.

   5. I strongly submit that I do not agree with the decision of the Tribunal. I strongly believe that, if I go back to Pakistan under these circumstances, I will be killed.

   6. I kindly request the Honourable Court to kindly set aside the tribunal’s decision of dated 14 December 2016.

Ground 1

1. In relation to ground 1, the applicant contends that the Tribunal’s decision was so unreasonable that no reasonable Tribunal could have reached the conclusions arrived at by the Tribunal.

2. The Court has summarised the adverse findings made by the Tribunal, and those reasons reflect a meaningful engagement with the applicant’s claims and evidence. It cannot be said that no reasonable decision-maker could come to the adverse findings that were made by the Tribunal. There is no basis in relation to the conduct, process or outcome to find that the review by the Tribunal was legally unreasonable. The adverse dispositive findings cannot be said to lack an evident and intelligible justification.

3. In the particulars to ground 1, the applicant suggested that the adverse findings in relation to his ethnicity and being an Urdu speaker were based on no evidence. That proposition is contrary to the detailed reasons of the Tribunal and the references made to country information. It was a matter for the Tribunal to determine what country information the Tribunal accepted. The Tribunal’s reasons, as summarised above and in relation to the adverse findings, cannot be said to be unreasonable, irrational or illogical. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the applicant contends that the adverse reasoning in relation to the applicant not being exposed to significant harm and in relation to the general security situation and violence in Pakistan was entirely speculative. That proposition is without substance.

2. The Tribunal’s reasons do not reflect an arbitrary or speculative approach to the determination of the applicant’s claims. The Tribunal provided logical, cogent and rational reasons in support of the adverse findings, as summarised above, in respect of general violence, including the reference to the absence of past harm to the applicant on the findings made by the Tribunal. The Tribunal’s adverse reasons in that regard cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant appears to submit that there was a conflation of findings by the Tribunal in relation to the Convention, complementary protection and the cumulative critique.

2. It is open to the Tribunal to take into account the adverse findings under the Convention in determining whether the applicant meets the criteria for complementary protection. It is apparent from the Tribunal’s reasons that the Tribunal engaged in a meaningful and detailed consideration of whether the applicant met the criteria in respect of complementary protection, and whether there was a real risk that the applicant will suffer significant harm.

3. The Tribunal referred to the applicant’s education that he obtained and that he had found employment. The Tribunal accepted that there may be some discrimination but did not accept, on the basis of the applicant’s past experience and country information, that there is a real risk the applicant will suffer significant harm.

4. The Tribunal referred to the applicant’s skills to obtain employment and referred to considering the applicant’s claims singularly and cumulatively in relation to the complementary criteria. There is no basis to find that the Tribunal conflated the law when determining whether the applicant met the Convention criteria or met the criteria in respect of complementary protection. The applicant’s ground 3, in substance, reflects a disagreement with the adverse findings and does not identify any jurisdictional error.

Ground 4

1. In relation to ground 4, the applicant’s disagreement with the Tribunal’s decision and assertion in relation to having a well-founded fear of persecution and being a refugee does not identify any relevant error by the Tribunal. The Tribunal found to the contrary for the reasons summarised above which were open to the Tribunal. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, the applicant’s disagreement with the Tribunal’s decision and the applicant’s assertion as to what will occur to him reflect a disagreement on the merits. It is apparent that the Tribunal did not accept that the applicant will be killed if returned to Pakistan. The Tribunal found that there was not a real risk or real chance that the applicant would face serious or significant harm if returned to Pakistan now or in the reasonably foreseeable future. No jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, this does not identify any relevant error by the Tribunal. For the reasons already given, the Court has no power to determine the matter on the merits or on discretionary or compassionate grounds. No jurisdictional error is made out by ground 6.

Section 438 certificate

1. The first respondent drew the Court’s attention to the s 438 certificate and to the documents the subject of the certificate. The Court has heard submissions from the first respondent in relation to the contents of the documents in Exhibit B. The Court accepts that there is no direct reference in the Tribunal’s reasons to the documents the subject of the s 438 certificate or the contents of those documents.

2. The Court has carefully looked at the material in Exhibit B. The Court is satisfied that the contents of the same are immaterial to the conduct of the review by the Tribunal and that the applicant has suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate. Accordingly, no jurisdictional error arises by reason of the existence of the certificate or the documents that are subject to the certificate in the circumstances of the present case.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 18 July 2019