AAX15 v Minister for Immigration

[2015] FCCA 2089

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2089

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal committed jurisdictional error by failing to take applicant’s claims in the way they were made – whether Tribunal failed to comply with the requirement under s.424A– whether the Tribunal failed to exercise its jurisdiction – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A, 425

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Citizenship v CZBP [2014] FCAFC 105
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

Applicant: AAX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 461 of 2015

Judgment of: Judge Smith

Hearing date: 28 July 2015

Date of Last Submission: 28 July 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Ms R. Krishnan, Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 461 of 2015

AAX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant came to Australia as a student on 29 March 2009. On 5 July 2013, as his brother was returning home from prayers, the applicant’s father shot and killed his mother. The father is now in police custody awaiting trial. The applicant has claimed asylum in Australia out of fear of his father.

2. The Refugee Review Tribunal accepted that this terrible event had occurred but found that the applicant did not qualify for the grant of a protection visa. The issue is whether the Tribunal’s decision was affected by jurisdictional error. The applicant argues that it fell into error in a number of ways: first, that it failed to address the applicant’s claims; secondly, that it not did not comply with a procedural requirement of the Migration Act 1958, namely s.424A; and thirdly, that it did not properly deal with corroborative documents put forward by him. For the reasons that follow there was no jurisdictional error in the Tribunal’s decision and the application will be dismissed.

The applicant’s claims

1. The applicant claimed that his father was a secretive person who had never maintained any sort of employment. He claimed that in the last one and a half years or so prior to the applicant’s departure in 2009, his father had begun deviating from religious practices and had abandoned his Muslim faith.

2. In a written submission in support of the visa application, the applicant’s agent asserted that the religious beliefs of the applicant’s father were relevant to bringing the applicant under the definition of refugee within the Refugees Convention [1]. The agent submitted that the harm feared would be for reason of the applicant’s imputed religious beliefs (as the son of an atheist) and political opinion or membership of a particular social group. The particular social group in question was later explained to be the applicant’s family.

   [1] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 together with the Protocol relating to the Status of Refugees done at New York on 31 January 1967

3. The applicant claimed that his brother, as the only witness to the murder, was at risk of harm at the hands of his father and that he too would be harmed because he would stand by his brother. He claimed that his father had had a history of abuse towards his family.

4. On 3 March 2014 a delegate of the Minister decided to refuse to grant the applicant a protection visa. The delegate found that religion had played no part in the murder of the applicant’s mother by his father, and was satisfied that the incident was the result of a marital dispute or an irate man’s display of power which escalated resulting in tragic consequences.

5. The applicant applied to the Tribunal for review of the delegate’s decision and sent a copy of the reasons for that decision to the Tribunal for that purpose. At the hearing on 23 January 2015 the applicant gave the Tribunal a letter dated 20 March 2014 from an advocate in the High Court of Pakistan who stated relevantly that the applicant’s father had a long criminal history and that he was a highly influential person who kept close relations with an extremist and terrorist party.

6. The Tribunal affirmed the delegate’s decision on 2 February 2015.

The Tribunal’s decision

1. The Tribunal accepted that the applicant’s father had killed his mother and considered it likely that there had been previous violent incidents towards the applicant’s mother and possibly also towards the applicant and his brother. However it was not satisfied that the applicant was genuinely fearful that his father would seek him out upon his return to Palestine or that his brother was in hiding.

2. Further, it did not accept that the murder of the applicant’s mother was because of his father’s connections with the Taliban or other extremist groups or because of his atheism. In this respect, the Tribunal had regard to the letter from the advocate and gave it limited weight because it considered that it was “either based on information that was reported to (the advocate) by the applicant or his family or is a fraudulent document”. For that reason the Tribunal did not accept that the applicant would be imputed with a political opinion because of his father’s purported atheist connections or that he had a genuine fear of harm from the Taliban or other extremist groups. The Tribunal did not accept that the applicant’s views, as being opposed to the ideology of those groups would give rise to a real chance of harm on return to Pakistan.

3. The Tribunal accepted that the applicant was reluctant to return to Pakistan given the very tragic nature of his mother’s death, however it concluded that the applicant had fabricated other aspects of his claims in an attempt to remain in Australia on a permanent basis as a result of his failure to achieve permanent residency through the student visa pathway.

4. On the basis of those findings, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

Ground 1: Failure to consider claims

1. The applicant’s first claim states that the Tribunal did not consider his father’s links with terrorist groups. However, the Tribunal clearly considered that claim and, subsequently, rejected it: see [26] and [29] of its statement of reasons. In light of that, it is apparent that what the applicant means by a failure to consider is that the Tribunal failed to accept this claim. That, however, is not a matter that goes to the jurisdiction of the Tribunal. As part of its duty to review the decision of the delegate, it was incumbent upon the Tribunal to consider the evidence and other material before it and to make findings of fact before considering whether, on those facts, it was satisfied that the criteria for the grant of visa were satisfied. In that sense, fact-finding is a matter entirely for the Tribunal. Thus, the simple fact that the Tribunal does not accept the factual assertion made by the applicant is not a sufficient basis for interference by this Court.

2. The same reasoning applies to the balance of the claims said not to have been considered by the Tribunal. The second such claim is that the applicant’s father murdered his mother. The claim was clearly considered and accepted: see [21] of the Tribunal’s reasons. The third claim is that the applicant’s father’s controlling behaviour prevented the applicant from studying. That claim, too, was considered by the Tribunal in this case and was rejected: see [22] – [25]. The fourth claim is that the applicant was genuinely fearful that his father would seek him out upon his return to Pakistan. The Tribunal considered this at [31] and rejected it.

3. The Tribunal considered all of the applicant’s claims. The fact that it rejected some of them is not indicative of any jurisdictional error and the first ground is rejected.

Ground 2: Breach of s.424A

1. Section 424A of the Act requires the Tribunal to give clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision that is under review. However the obligation does not arise in relation to information that the applicant gave for the purpose of the application for review: s.424A(3)(b).

2. The application to the Court contains no particulars of the information said to give rise to the obligation under s.424A and, at the hearing, the applicant was unable to point to any such information. The only information that I could see that might fall within the purview of that provision of the Act was referred to in the following statement by the Tribunal at [25] of its reasons:

   The Tribunal does not accept that the applicant was too depressed about the situation with his family in Pakistan to study and considers that the evidence indicates that following the refusal of his Student visa application, which was before the Migration Review Tribunal at the time of his mother’s death, he sought another way to remain in Australia.

3. It is at least arguable that the fact that the applicant was pursuing review in the Migration Review Tribunal at the time of his mother’s death was considered by the Tribunal to be something which undermined the applicant’s claims. If that were the case, it might constitute “information” within the meaning of s.424A. However, as submitted by the Minister, the applicant’s migration history including the history of his visa refusal and application to the Migration Review Tribunal was set out in the delegate’s reasons for the decision. That decision was, as I have noted above, sent by the applicant to the Tribunal for the purposes of the application for review. For that reason, the information fell within s.424A(3)(b) and, as a consequence, there is no obligation on the Tribunal to provide the applicant with clear particulars of it pursuant to s.424A(1). The second ground is rejected.

Ground 3: Corroborative evidence

1. This ground is put in two ways: first, that it was an error for the Tribunal to place no weight on documents without engaging with the contents of the documents themselves; and secondly that the Tribunal erred by assessing the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

2. This ground focused upon the way in which the Tribunal dealt with the letter from the advocate which is referred to above at [10]. The Tribunal explained that it gave limited weight to that letter because its view was that the content of the letter was either based on information that was reported to the author by the applicant or his family or that it was a fraudulent document. In respect of the second of these reasons, the Tribunal relied upon information about the availability of fraudulent documentation in Pakistan which, it said, it had raised with the applicant at the hearing. As to the first reason, while there is nothing in the statement of reasons prepared by the Tribunal to support it, the applicant took no issue with that reason and indicated that he had in fact provided the author with the information referred to in the letter.

3. The question then, is whether the Tribunal engaged with the content of the letter at all or simply put it to one side and so committed one of the errors discussed by the Full Court of the Federal Court in Minister for Immigration & Citizenship v CZBP [2014] FCAFC 105. In my view, there are two reasons for which it is clear that the Tribunal did in fact engage with the contents of the letter and not simply rejected it. First, at [18] of its reasons it accurately summarises the contents of that letter; and secondly, the context of the discussion by the Tribunal of the letter in its findings and reasons involves the very matters to which the letter was addressed, namely the applicant’s fathers connection with the Taliban or other extremist groups. For those reasons, I conclude that the Tribunal did engage with contents of the documents and so this argument fails.

4. As to the second argument, it is not correct to say, as the applicant asserts, that the Tribunal failed to assess the applicant’s credit without assessing the substance of the documents. The structure of the Tribunal’s reasons is, after it had set out the background and claims to the application, that it first summarised its findings and conclusions: [21]. At the conclusion of that summary the Tribunal stated: “The Tribunal’s assessment of the evidence and its reasons for reaching this conclusions follow.” Next, the Tribunal analysed various aspects of the applicant’s evidence and claims. The fact that this was set out in the statement of reasons in a linear fashion does not necessarily indicate that the Tribunal had any single point made findings referred to without first having regard to all of the evidence. In Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Gleeson CJ said at 1169 [14]:

   Decision makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

5. For that reason, the second basis for the third ground is also rejected.

Remaining grounds

1. The applicant also contended in his application that the Tribunal failed to properly consider the test that the applicant would suffer serious harm and that it had no jurisdiction to make a decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. Neither of these grounds is made out. As to the first one, the Tribunal properly assessed the application on the basis that there was no real chance of harm upon the applicant’s return to Pakistan and that the applicant did not have any genuine fear of such harm.

2. The definition of a refugee, which must be met in order for the applicant to satisfy one of the criteria for the grant of a protection visa, imposes a number of cumulative requirements. Two of those are that the applicant actually have a genuine fear of persecution and that that such fear be well-founded. A well-founded fear is one in respect of which there is a real chance that the harm feared will eventuate: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. As the Tribunal found that those two requirements were not met, it was not, in fact, obliged to consider whether the harm that the applicant claimed to fear amounted to serious harm within the meaning of s.91R(1) of the Act.

3. The second of these remaining grounds is not particularised and was not addressed in any submissions by the applicant. The applicant has failed to establish any basis which might impugn the Tribunal’s statement that it was not satisfied that the applicant met the criteria for the grant of the protection visa. The grounds that he has raised have been rejected for the reasons I have given above. In light of that, this additional ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 7 August 2015