AAN16 v Minister for Immigration

[2017] FCCA 2144

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2144

Catchwords:
MIGRATION – application for Constitutional writ – Protection visa – adverse credibility findings by the Tribunal were open – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: AAN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 7 of 2016

Judgment of: Judge Street

Hearing date: 5 September 2017

Date of Last Submission: 5 September 2017

Delivered at: Sydney

Delivered on: 5 September 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Solicitors for the Respondents: Ms E Cheesman
Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 7 of 2016

AAN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of the decision of the Administrative Appeals Tribunal (“The Tribunal”) made on 6 December 2015, affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Pakistan who was granted a business short stay subclass 456 visa on 19 April 2012. The applicant arrived on that visa in Australia on 12 May 2012 and it was not until 2 May 2013 that the applicant made an application for protection.

3. The applicant claimed to fear harm in Pakistan from the Lashkar-e- Taiba (LeT) and the Taliban because he refused to give them information or work for them. In summary, the applicant alleged that he had a business selling government bonds and that he had closed that in 2005 because of approaches made to him, and that he kept working unofficially until he left for Australia in 2012.

4. On 5 May 2014 the delegate found the applicant failed to meet the criteria for the grant of a visa.

Review application to Tribunal

1. On 19 May 2014, the applicant applied for review. The Tribunal identified the applicant’s background. The Tribunal set out the applicant’s claims and identified the relevant law in an attachment to the Tribunal’s reasons. 

2. By letter dated 26 October 2015, the applicant was invited to attend a hearing on 30 November 2015. The applicant appeared on that date to give evidence and present arguments. The Tribunal’s reasons record raising with the applicant issues concerning the contact he had from the two groups and referring to his statutory declaration, in which the applicant said they needed someone to work for them to pass their message, effectively, to the public.

3. The Tribunal referred to the applicant saying that he could have told the public that these were good people and that they should work for them. The applicant alleged that they came to the applicant making this request again and again, but he refused. The Tribunal raised with the applicant that when he had been interviewed by the primary decision maker, he had said that what they wanted had been information about his customers who were rich businessmen. In response, the applicant said they wanted names and telephone numbers of the rich businessmen.  The Tribunal member raised with the applicant that, each time he was asked about what it was that people wanted, he gave a different answer. The applicant responded that he was telling whatever happened to him. 

4. The Tribunal summarised the evidence given at the hearing and the issues raised with the applicant, and put the applicant on notice of a challenge to the applicant’s credit. The Tribunal expressly raised with the applicant that it was having great difficulty in accepting that he was telling the truth about his problems in Pakistan. The Tribunal made reference to the different accounts of the problems that the applicant alleged that he had had with the groups. The Tribunal also raised with the applicant at the hearing that the applicant pursued other opportunities instead of applying for protection after he came to Australia. The Tribunal identified having great difficulty in accepting that the applicant was telling the truth about his problems in Pakistan.  The Tribunal referred to putting to the applicant inconsistencies in the evidence about the people from the two groups and inconsistencies in the evidence about what it was the people from the two groups wanted. The Tribunal referred to the applicant saying initially at the hearing that the terrorist groups wanted him to give them some religious information.  The Tribunal made reference to the applicant saying that they wanted information about rich people, and particularly business people, who gave to charity. The Tribunal then referred to the applicant saying that they wanted him to help them to recruit people from the mosques, like religious schools or madrasas, who could work for them.

5. The Tribunal made reference to the applicant saying that they had approached him because he had good relationships with everyone and he had good knowhow in marketing. The applicant also told the Tribunal that the groups wanted to have internal information about weaknesses which they could attack. The applicant told the Tribunal the groups normally attacked mosques and bus stands in such areas and that they wanted to find boys they could use. In that context the Tribunal said that it appeared that each time the applicant was asked about what it was the people from LeT and the Taliban actually wanted, he had given a different answer. The applicant responded he was telling whatever happened to him.

6. The Tribunal found there were clear differences between the groups wanting the applicant to work for them, to pass their message effectively to the public, and wanting the applicant to give them information about rich customers so they could obtain money from them, or wanting him to give them internal information about weaknesses so that they could attack mosques and bus stands. The Tribunal noted that the applicant had also given different accounts of the problems he had actually had with the people from the two groups. The Tribunal also raised with the applicant the difficulty in his evidence in relation to how closing his shop would have helped him evade the terrorist groups, given that they knew where he lived. The Tribunal raised with the applicant that he had given different accounts of the problems he claims to have had with the people from the two groups, that there are inconsistencies in his evidence with regard to when he claims to have been beaten, what happened, when these people came to his home and whether he remained at his home or moved around to other places. The Tribunal put to the applicant that, although he had said these people threatened to kill him, they do not appear to ever attempted to do so.  The Tribunal found it difficult to accept that terrorist groups would simply have accepted his family’s assurances.

7. The Tribunal also raised with the applicant difficulty in accepting that he was telling the truth about his problems in Pakistan, given the delay of almost a year in applying for a protection visa after arriving in Australia. The Tribunal considered that the applicant’s delay applying for protection was relevant to his genuineness, or at least the depth of his claimed fear of being persecuted if he returns to Pakistan. The Tribunal did not accept that the applicant is telling the truth about the problems he claims to have had with members of the LeT or the Taliban. The Tribunal did not accept that they approached him asking him to help, nor that they assaulted him or threatened to kill him when he refused to help them.

8. The Tribunal did not accept that there is a real chance that, if the applicant returns to Pakistan now or in the reasonably foreseeable future, he will be forced to work for terrorist groups or that he will be threatened, assaulted, killed, or otherwise persecuted for a reason to work for them. The Tribunal did not accept that the applicant had a well-founded fear of being persecuted for one or more of the five conventional reasons if he returns to Pakistan now or in the reasonably foreseeable future.

9. The Tribunal did not accept there are substantial groups for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he would suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found that the applicant did not meet the criteria for the grant of the visa under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Application to this Court

1. The grounds in the amended application are as follows.

   1. The Applicant. a Pakistani citizen made a number of claims in support of his application for a protection visa:

   i. That he was approached by two notorious terrorist organizations. namely Lashkar-e- Taiba and the Taliban:

   ii. They sought to utilize his marketing talents and his people skills for recruitment and public relations purposes:

   iii. They needed him to provjde economic and reHgjous rivalry intelligence (not 'some religious information' as the tribunal claimed):

   iv. He had consistently refused to help them and. consequently. Was threatened. abused and beaten by them:

   v. The police either refused or were powerless to provide him with protection:

   vi. He feared for his life and for his family and rarely left his home:

   vii. His family lied about his whereabouts whenever they came to his home and he went jnto semi-hiding: and

   viii. That he fled to Australia for safety.

   2. The tribunal erred in law and in fact when it found the applicant not to be truthful partly because of his perceived failure to apply for a PV immediately upon arrival in Australia and by treating the delay as determinative of the issues before it and by not weighing whether the applicant’s explanations were plausible (see SZJYM v Minister for Immigration & Anor [20081 FMCA 652 (27 June 2008))

2. Mr Newman, solicitor for the applicant, argued that the credibility findings made by the Tribunal were erroneous. Mr Newman argued that the Tribunal had failed to exercise appropriate precision in identifying the information that the two groups had been seeking from the applicant and that there were other more precise questions that might have been asked. Mr Newman submitted that the applicant was trying to compress a number of years in his answers and took issue with the adverse credibility findings and reasoning of the Tribunal.

3. Mr Newman sought to argue that the applicant’s answers were consistent and that there was not an inconsistency as identified by the Tribunal. Mr Newman accepted that this was not a case where the Tribunal had determined the applicant’s credit solely by reference to the delay in the application for protection. The delay in the application for protection was, however, obviously relevant and was a matter taken into account by the Tribunal in assessing the applicant’s credit.

4. The Tribunal identified logical, rational and reasonable inconsistencies in respect of the applicant’s evidence which cannot be said to be minor or trivial. The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal. While skilfully presented, the submissions on behalf of the applicant are  in substance, inviting this Court to engage in an impermissible merits review.  No jurisdictional error as alleged in grounds 1 and 2 is made out. 

5. Accordingly, the amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2017