ACK16 v Minister for Immigration

[2017] FCCA 3067

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACK16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3067

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: ACK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 71 of 2016

Judgment of: Judge Riethmuller

Hearing date: 13 October 2017

Date of Last Submission: 13 October 2017

Delivered at: Melbourne

Delivered on: 13 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application in a case filed on 14 September 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 71 of 2016

ACK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore)

1. This is an application to set aside orders made dismissing the primary proceedings on 4 September 2017 as a result of the failure of the applicant to appear in court on that day. 

2. The applicant sets out in an affidavit that he attended the courts on that day and went to the wrong courtroom as a result of an error in the electronic display in the foyer of the courts building.  By the time the applicant discovered the correct courtroom, the proceedings had already been dismissed and the Minister’s representative and the interpreter booked for that day had gone. 

3. The real issue in this case is whether or not the applicant has an arguable case which would then justify reinstating the proceedings. 

4. The applicant’s primary application is for an extension of time within which to bring judicial review proceedings against a decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 November 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.  That application was made some 21 days out of time and so the applicant needs an extension of time to bring the primary application. 

5. Counsel for the Minister does not argue that there is prejudice or that the explanation for the delay is significant in this case.  Rather, that the primary application is without merit and, therefore, there is no point either setting aside my previous orders, nor granting an extension of time, to bring the judicial review proceedings. 

6. The applicant in this case is a citizen of Pakistan who arrived in Australia on 22 July 2012 as an unauthorised maritime arrival.  The applicant applied for a protection visa in December 2012 and was interviewed by a delegate of the Minister in October 2013.  The applicant’s migration agent provided written submissions to the Department that month.  In February 2014, the delegate refused to grant the applicant the visa.  The applicant then applied to the Tribunal for review of the delegate’s decision. 

7. In April, the applicant was invited to attend a hearing before the Tribunal on 3 June 2015.  Although, this was postponed as the Tribunal member fell ill.  In October 2014, the applicant appeared before the Tribunal, gave evidence and presented arguments with the assistance of his migration agent and an interpreter.  Written submissions were provided to the Tribunal by the applicant’s migration agent both before and after the hearing.  The Tribunal affirmed the decision of the delegate. 

8. The applicant’s claims were set out in the form that accompanied his visa application in December 2012.  The applicant said that as a Shia Muslim, he was fearful of harm from Sunni Muslims in Parachinar and Pindi.  The applicant said there was a bomb explosion near his uncle’s shop in Parachinar in 2009 and that Shia people were being kidnapped and killed in Pindi and Peshawar.  At the interview with the delegate, the applicant explained that he was fearful of the Taliban, extremist Sunni Muslims and also because of his ethnicity and origin being from Parachinar and his political opinion being against the Taliban.  The applicant also said threatening letters had been sent to his home. 

9. In written submissions provided to the Tribunal by his agent on 28 May 2015, the applicant listed the reasons that he feared harm as follows: 

   - His Shia religion;

   - His Turi ethnicity;

   - His imputed political opinion in opposition of the Taliban on account of:

   - His Shia religion; and

   - His Bangash ethnicity; and

   - His origins from Kurram Agency, a region with a long-standing violent conflict with the Taliban; and

   - His extended presence in Australia (a Western country with a Christian heritage) as an asylum seeker;

   - His membership of the particular group of ‘Shia Turis from Kurram Agency’;

   - His membership of the particular social group of ‘Returned failed asylum seekers from a Western country’.

10. At the hearing before the Tribunal, he also raised a claim that his father had been stabbed near his home in Pakistan and had to go to hospital for a few weeks before the hearing.  In written submissions, it was said that the applicant was concerned that the ongoing conflict, particularly in Kurram Agency, resulted in extremist groups attacking civilians with profiles similar to the applicant by reason of their Shia religion and Bangash or Turi ethnicity. 

Tribunal’s Findings

1. The Tribunal did not accept the claim that there was a bomb explosion near his uncle’s shop.  They gave detailed reasons in this regard:

   34. As referred to above, when I asked [the applicant] why his family had decided to leave Parachinar in 2009 he initially confirmed that it had been because of the general security situation.  After I put to him that he had said in the statutory declaration accompanying his application for a protection visa that they had decided to leave because of a bomb explosion 300 metres from his uncle’s shop he had said there had been such a bomb explosion in 2009.  As I put to him, I have been unable to find any reference to a bomb explosion in the Eidgah Market or anywhere near the Eidgah Market in 2009 and, given that he claims that 25 people were killed in this incident, I consider that it would have been reported.  As I put to him, there were large bomb explosions in the Eidgah Market or in the vicinity of the Eidgah Market in 2007 and 2008 but he has said that he went on working in his uncle’s shop in the Eidgah Market for around another year after the second of these incidents.  [The applicant] said that they had not been able to leave at that time because the road had been blocked and he said that when the situation had been a little bit improved they had moved out.  However in the absence of any independent evidence that such a bomb explosion happened I do not accept on the evidence before me that [the applicant] and his family decided to leave Parachinar in January or February 2009 because of a bomb explosion 300 metres from his uncle’s shop in the Eidgah Market as he has claimed.

2. Similarly, the Tribunal did not accept his claim with respect to threatening letters, explaining: 

   35. As I likewise put to [the applicant], I have difficulty in accepting that he is telling the truth about the threatening letters which he claims were dropped at his home in Wah Cantonment.  As I put to him, he made no mention of these threatening letters in the statutory declaration accompanying his application for a protection visa.  As referred to above he said that some Sunni people who came originally from Parachinar had moved to live in Rawalpindi and that he had feared being kidnapped and killed but he made no mention of having received threatening letters from these people.  He referred in passing to these threatening letters when he was interviewed by the primary decision-maker and at the hearing before me he said that he had only picked up one or two of them.  He said that he did not know if any other member of the family had picked up such letters.  After I put to him that I found this difficult to accept he said that they had not talked about these matters because they could not read.  This clearly cannot be true of his younger brothers who he has said are attending school in Wah Catnonment and even if it were true of his mother and sisters I consider it reasonable to assume that if they had found such letters they would have taken them to someone like [the applicant] who could read them.

3. With respect to his claim that his father had been stabbed, the Tribunal said: 

   37.  As referred to above, [the applicant] claimed at the hearing before me that two or three or four weeks before the hearing his father had been followed or chased and that two or three days after this his father had been stabbed.  As I put to him, I find it difficult to accept that his father would have had no problems while conducting his real estate business for three years but then suddenly, two or three or four weeks before the hearing, his father would have been stabbed.  As referred to above, [the applicant] said that when he called home they did not tell him everything and that they only told him about this incident two or three days before the hearing.  However, after I suggested that if his family were having the problems he claimed in Wah Cantonment they would have moved back to Parachinar by now, he said that they were not going back there because the education was better in Wah Cantonment than in the Kurram Agency.  Having given careful consideration to all of the evidence before me I do not accept that [the applicant] is telling the truth about the problems which he claims he and his family have experienced while living in Wah Cantonment.  I do not accept that he or his family received threatening letters while he was in Pakistan nor that, shortly before the hearing before me, his father was chased or followed and then stabbed two or three days later, as he claimed at the hearing before me.  I do not accept that he or his family have ever been threatened y Sunnis from Parachinar as he has claimed.

4. The Tribunal turned to consider the country information and found that the situation in the Kurram Agency had improved and was now relatively stable (see [39] to [42]).  The Tribunal went on to conclude:

   43. … I do not accept that there is a real chance that [the applicant] will be singled out or targeted on an individual basis by Sunni people from Parachinar, the Taliban or other Sunni extremist groups if he returns to his home in Parachinar now or in the reasonably foreseeable future.

5. The Tribunal also turned its mind to whether or not the applicant may be harmed as a result of being a failed asylum seeker, saying:

   48. … As I put to [the applicant], the Australian Department of Foreign Affairs and Trade has advised that failed asylum-seekers may be questioned on their return to Pakistan to determine if they are wanted for crimes in Pakistan but it said that asylum-seekers like himself who left on valid travel documents had not committed immigration offences.  As I put to him, the Department said that it was not aware of any credible reports that returnees had been punished by the authorities on their return to Pakistan.  Having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept that there is a real chance that [the applicant] will be persecuted because he will be returning to Pakistan as a failed asylum-seeker from Australia.

6. The Tribunal ultimately concluded that:

   49. … For the reasons given above I do not accept that there is a real chance that, if he returns to what I have found to be his home in Parachinar now or in the reasonably foreseeable future, he will be persecuted for reasons of his race (Bangash), his religion (Shia), his imputed political opinion in opposition to the Taliban and/or other extremist Sunni groups (on account of his race, his religion, his origins from the Kurram Agency, a region with long-standing violent conflict with the Taliban, and his extended presence as an asylum-seeker in Australia, a western country with a Christian heritage) or his membership of the particular social groups of ‘Shia Bangash from Kurram Agency’ or ‘Returned failed asylum seekers from a Western country’.  I have considered the totality of [the applicant’s] circumstances as a Shia Bangash from the Kurram Agency who has spent an extended period as an asylum-seeker in Australia.  However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.

Grounds of Judicial Review

1. The applicant’s written grounds of judicial review are as follows:

   1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

2. The applicant has not filed any written submissions or other documents to indicate any specific basis for these grounds for review.  At the hearing before me today, I asked the applicant to explain in his own words what he thought the error or mistake of law by the Tribunal may be or what unfairness occurred in the process.  The applicant was unable to articulate any complaint, either to do with the law applied or the process adopted by the Tribunal.  At best, the applicant seeks merits review of the Tribunal’s decision. 

3. I am not persuaded that either of these grounds shows an arguable case for judicial review in the circumstances of this case.  In these circumstances, there is no point setting aside the previous order, nor could the applicant be successful in obtaining an extension of time to bring the substantive proceedings. 

4. I, therefore, dismiss the application. 

5. In this matter, the Minister has been entirely successful.  The Minister seeks costs in the sum of $1,000.  Having regard to the scale, I find this is a reasonable fee.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  8 December 2017