AEA16 v Minister for Immigration

[2016] FCCA 1125

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEA16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1125

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal should have granted and extension of time – whether the Tribunal failed to engage with country information – whether the Tribunal failed to take relevant considerations into account – no jurisdictional error identified – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: AEA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 138 of 2016

Judgment of: Judge Street

Hearing date: 11 May 2016

Date of Last Submission: 11 May 2016

Delivered at: Sydney

Delivered on: 11 May 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the First Respondent: Ms P Blackadder
Sparke Helmore

ORDERS

1. Leave is granted to the applicant to file in court the further amended application dated 10 May 2016 and the need for the filing of any electronic copy is dispensed with.

2. The further amended application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 138 of 2016

AEA16

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 Tribunal made on 22 December 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Pakistan, and his claims were assessed that country. The applicant arrived on Christmas Island as an irregular maritime arrival on 9 August 2012 and made an application for protection on 27 March 2014. On 15 August 2014, a delegate refused to grant the protection visa. On 19 August 2014, the applicant applied for review.

2. The applicant is a Shia Muslim of Bangash ethnicity from [X] in the Kurram Agency. The applicant’s claims for protection were founded on the basis of his religious beliefs, political opinion, actual or implied membership of a social group and his fear of death, torture, inhumane or degrading punishment. 

3. The applicant claimed that his father worked in a senior role in a government agency until he retired and was given the title Malik while in that role.  Following his retirement, the applicant’s father was involved in peace negotiations.  Accordingly, the applicant’s father’s profile made the applicant and his family a target for the Taliban.

4. In 2007, the security situation in Parachinar deteriorated rapidly, with renewed fighting between the Taliban and Shias.  In 2008, the fighting occurred outside [X] City.  One day, the Taliban fired on a mosque following prayers, killing 17 people.  The applicant escaped through the back door of the mosque before the Shias began fighting back.  Fighting ceased in the city after a month.  However, the Taliban began attacking people on the road between [X] and [Y].  Many people were killed and the road was often closed, forcing the applicant to travel through Afghanistan to reach [Y] on three occasions. 

5. The applicant’s family was targeted because of his father’s previous role in the government. According to the applicant, in 2009 and 2010, the applicant’s family received threatening letters at their house, stating that anyone who left the house would be killed.  The letter mentioned the applicant’s brothers, who were working in particular locations, and also mentioned the applicant’s name. The applicant and his family remained indoors for a week; however, no targeted attack ever occurred.  In 2010 the applicant was in a bus to a particular area when an explosion occurred in front of him.  The applicant was injured by broken glass in this incident. 

6. In March 2012, the applicant’s brothers and sisters were injured in a bomb blast while travelling on the road between [X] and [Y].  Following this incident, the applicant decided to leave Pakistan.  The applicant believes that Shias were in danger everywhere in Pakistan and that he could not live anywhere in Pakistan safely, as Shia Muslims were easily identifiable and targeted through Pakistan.  The applicant alleged that relocation was not a viable option.  The applicant said he would be easily identified as a Shia from [X] due to his ID card, and would struggle to find housing and employment due to discrimination against Shias from [X].

7. The Tribunal did not accept that the applicant faced a real chance of serious harm from TTP or other extremist Sunni groups by reason of his Shia religion or his Bangash ethnicity.  The Tribunal accepted that the applicant’s father had been a senior government clerk, had been given the title Malik and had been involved in peace committee following his retirement.  However, the Tribunal did not accept that there was a real risk the applicant or his family faced being persecuted due to his profile, nor that they had a profile which attracted attention of the Taliban. 

8. The Tribunal did not accept that there was a real chance the applicant would be captured or killed on return to Pakistan because he had spent time in a western country, nor that there was a real chance the applicant would be persecuted as a returned asylum seeker.  The Tribunal found that there had been a sustained involvement in the security situation in the Kurram Agency and that a recent terrorist attack was anomalous.  The Tribunal found that there is no greater risk to the Bangash tribe than the Turi tribe and, accordingly, did not accept that the applicant faced a real risk of being targeted on the basis of his religion or ethnicity. 

9. Having considered the applicant’s claims and documentary evidence, the Tribunal rejected the applicant’s claims due to fear of harm as a member of a particular social group, Bangash Shias from Kurram Agency, or as a returned asylum seeker from a western country.  The applicant originally filed an application alleging, in substance, two grounds.  The applicant then filed an amended application.

10. The amended application that was then filed advanced two grounds with multiple subparagraphs, the first ground with subparagraphs totalling 48 paragraphs, the second ground totalling seven paragraphs.  Those grounds were signed by a legal representative.  The grounds failed to distil properly any jurisdictional error and were not drawn in a fashion reflecting proper attention to identifying jurisdictional error.  Prolix grounds are likely to be struck out when they are produced by legal practitioners. 

11. On the day of the hearing, a further amended application was filed which on its face purported to identify a contraction back to a single ground of a failure to take into account relevant considerations.  That distillation and contraction of issues was helpful, and leave was granted to file the further amended application.  It should, however, be identified that what was advanced as a singular ground relating to failure to take into account a relevant consideration in fact masked various subgrounds of alleged erroneous findings. 

12. It is most important when legal representation is settling grounds that the headings and the grounds are clearly distinguished.  In the present case, the grounds of the further amended application are as follows:

    1. The second respondent failed to take into account relevant considerations when affirming the decision or failed to give proper, genuine and realistic consideration to the claims by the applicant.

    Particulars

    Personal Details

    a) At [1] of the decision record, the applicant is an ethnic Pashtun, Shia Muslim of the Bangash tribe from Parachinar in the Kurram Agency of the Islamic Republic of Pakistan (Pakistan). The applicant was studying to become an electrician.

    b) At [72], the Tribunal ‘accept[ed] that [the applicant] will be able to be identified on the basis of his National Identity Card as being from Parachinar as he has said and that on this basis and because of his name he will be able to be identified as a Shia Muslim.’

    Protection Claims

    c) At [1], the applicant claims protection in the Commonwealth of Australia (Australia) due to a well-founded fear of harm based on his religious beliefs, political opinion, actual or implied, his membership of a social group, including death, torture, inhuman or degrading treatment. In particular:

    i. At [1], the applicant claimed that his father is a retired public servant and that he believes that his family has been targeted because of his father's profile.

    ii. In 2009 and 2010 his family received threatening letters but that his family was never actually attacked while he was in Pakistan. He came to Australia by boat in 2012 and his family home was attacked on the night of 13 January 2015, where one of his brothers and one of his sisters received minor injuries.

    iii. The applicant also referred to incidents on the road between Parachinar and Peshawar. In 2010, the applicant was injured when there was an explosion and the windows of the bus in which he was travelling were shattered and that in 2012 one of his brothers and one of his sisters were injured in a bomb blast while travelling on this road.

    d) At [2], in a submission to the Tribunal dated 10 June 2015, the applicant's representatives submitted that there was a real chance that he would face serious harm:

    a) from the Tehreek-e-Taliban Pakistan (TTP) or other extremist Sunni groups in Pakistan for reasons of his Shia religion, his Bangash ethnicity,

    b) his imputed political opinion in opposition to the Taliban - on account of his Shia religion, his Bangash ethnicity, his origins from the Kurram Agency (which they said was a region with a longstanding violent conflict with the Taliban),

    c) his father's profile as a government employee and member of a Peace Committee and his extended presence in Australia (which they characterised as a Western country with a Christian heritage)

    d) The applicant's representatives further submitted in a post hearing submissions dated 24 June 2015 and 17 December 2015, that the country information regarding the current security situation in the applicant's home area of Parachinar, in particular, the OF AT Thematic Report - Shias in Pakistan, 14 April 2015, and the DFAT Country Report - Pakistan, 14 April 2015.

    (a) Further submission dated 24 June 2015 - DFAT Thematic Report - Shias in Pakistan, 14 April 2015, paragraph 4.37

    20. So far as the general security situation in Parachinar is concerned, information from the DFAT Thematic Report - Shi as in Pakistan, 14 April 2015, paragraph 4.3 7, was put to the applicant at [62] of the decision record, that a 2013 truce between the Shia Turi and mostly Sunni Bangash communities in the Kurram Agency was still in place as of “November 2014” and that the main road from Thal to Parachinar was open and was frequently used by civilian cars.'

    20. At [62] page 19, second sentence in, the Tribunal observed that the applicant's representatives 'relied heavily on the fact that the Australian Department of Foreign Affairs and Trade said in the same report that it assessed that there was a high degree of generalised violence in the FAT A and a moderate risk of sectarian violence in some areas and that the situation in the FAT A remained volatile due to ongoing counterinsurgency operations by the Pakistani security forces ' at [4.37] of that report.

    21. However, the Tribunal erred by finding that this 'assessment must be read in context as relating to the FATA as a whole, not specifically to the Kurram Agency.'

    22. The information in the DFAT Report under the heading 'Federally Administered Tribal Areas, [4.30-4.37] relates primarily to the Kurram Agency in its scope and the conclusion reached in [4.37] includes the Kurram Agency. That is, although there have been improvements in the security situation in the Kurram Agency, there remains a 'moderate risk of sectarian violence' in the area.

    23. The Tribunal failed to take into account [4.37] of the DFAT Thematic Report which found there was a ' moderate' risk of sectarian violence and erred when finding at [71] of the decision record that there is 'only a remote chance that Mr Hussain will be persecuted in the context of such terrorist attacks if he returns to his home in Parachinar now or in the reasonably foreseeable future.'

    (b) The Other Tribunal Decisions

    20. At [64], in the post-hearing submission dated 24June2015, the applicant's representatives submitted that in recent cases the Tribunal (differently constituted) had taken the view that, despite indications of improvement, Shias from the Turi and Bangash tribes continued to face a real risk of serious harm in Parachinar. They quoted two paragraphs from a decision of the Tribunal (differently constituted), 1401227 [2015] RRTA 311 (25 May 2015) and 1312138 [2014] RRTA 856 (9 December 2014).

    21. The Tribunal failed to take this information into account and erred by finding that the 'material on which they relied was dated.'

    (c) FATA Reports

    24. At [65], the applicant's representatives referred to incidents cited in the FATA Research Centre, Annual Security Report 2014 , 26 May 2015, page 46, which observed a total of two incidents, one bomb blast and one target killing, had been recorded during the year, killing three people and injuring one person. The bomb blast was the roadside IED explosion in November 2014 referred to by Mr Hussain and the killing was of a tribal elder on his way to the Sadda Bazaar.

    25. In its quarterly report for the second quarter this year (April to June 2015) the FATA Research Centre observed three security incidents, one was a clash between militants and the security forces in the Tor Toot area resulting in the death of two militants, another was a land mine blast in the Pewar area in which one member of the security forces was injured and the third was the attempted suicide bomb attack in Alizai in May 2015.

    26. At [66], in its quarterly report for the third quarter (July to September 2015) the FATA Research Centre referred to six security incidents.

    27. The Tribunal failed to take into account the FATA reports and erred by finding at [66] that 'while, as the report stated, this was double the level of the security incidents in the previous quarter, it is still very low.'

    (d) Further submission dated 17 December 2015 Mr Hussain's representatives referred to the bomb explosion in the Eid Gab clothes market in Parachinar on 13 December 2015

    28. At [67], in the further submission dated 17 December 2015, the applicant's representatives referred to the bomb explosion in the Eid Gah clothes market in Parachinar on 13 December 2015 in which at least 25 people were killed and over 70 were injured.

    29. The Tribunal failed to acknowledge let alone take into consideration at all the report provided by the applicant's representatives at 248 from the Guardian, 'Pakistan market bomb leaves 22 dead and scores wounded' 14 December 2015.

    30. Moreover, the sectarian extremist group Lashkar-e-Jhangvi (LeJ) claimed responsibility for the attack, stating that it was directed against Shias' citing AAJ News (Pakistan) 'LeJ claims responsibility for Parachinar for Parachinar blast' 14 December 2015.'

    31. The Tribunal failed to engage with the country information and erred by finding at [68], that this 'submission does not reflect the weight of the evidence which indicates that there has indeed been a sustained improvement in the security situation in the Kurram Agency.'

    32. Moreover, there was an insufficient logical or evidentiary basis for the Tribunal to find that '[d]espite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like the attempted suicide attack in Alizai referred to by Mr Hussain' or that 'it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation.'

    (e) The Road between Parachinar and Peshawar

    33. At [69] as also referred to the Taliban attacking people on the road between Parachinar and Peshawar and he has said that he himself was injured by glass when there was a bomb explosion in front of the bus in which he was travelling in the Tor Ghar area, near Sadda, in around 2010.

    34. Also the applicant's representative also claimed in their submission dated 24 June 2015 from another decision of the Tribunal (differently constituted), 1319201 (2014] RRTA 835 (2 December 2014) in which the Tribunal said that, based on the information available at that time, the road between Thal and Parachinar had frequently been closed because of attacks by militants, that even after the road had been reopened there continued to be sporadic attacks by militants against Shias and that the authorities had been powerless to prevent attacks against persons travelling on the road.

    35. However, at [70], the Tribunal erred by considering the material was dated.

    36. Moreover, the Tribunal accepted that, 'as referred to in the reports of the FATA Research Centre, there have been occasional incidents on the road in recent years' but erred by finding 'on the basis of all of the evidence before me regarding the security situation that there is only a remote chance that Mr Hussain will be killed or injured in such incidents while travelling on the road between Parachinar and Peshawar at any time now or in the reasonably foreseeable future.

    37. In light for the foregoing, the Tribunal failed to take into account the country information and erred by finding at [71] of the decision record that there is 'only a remote chance that Mr Hussain will be persecuted in the context of such terrorist attacks if he returns to his home in Parachinar now or in the reasonably foreseeable future.'

13. The Tribunal in its reasons incorporated an attachment A that referred to the Ministerial direction and requirement to take account of the information identified in that direction.  Paragraph 3 of the Tribunal’s reasons both referred to that attachment and expressly acknowledged taking the policy guidelines into account, and the country information assessments prepared by Department of Foreign Affairs and Trade to the extent relevant.

14. It is not appropriate for an application to include personal details or a summary of protection claims when being drawn by counsel to identify grounds of jurisdictional error.  The initial particulars under personal details and protection claims do not articulate any jurisdictional error or identify any relevant consideration that was not taken into account. 

15. The first document that counsel for the applicant sought to suggest had not been taken into account was a DFAT thematic report in respect of a particular para.4.37.  That paragraph was expressly identified in footnote 22 in respect of an analysis of the Tribunal’s reasoning where it expressly referred to the content of that paragraph.  For counsel to advance a submission that there is a failure to take into consideration that document and that paragraph was without substance and completely lacking in any merit. Nonetheless, counsel continued to try and develop the submission

16. The reason for that was that, in fact, embedded in ground 1(a) was not only a failure to take into account a relevant consideration, but also an alleged erroneous finding. To the extent that the applicant advanced the submission that the Tribunal failed to take into account the DFAT thematic report, para.4.37, it is completely lacking in substance.  The argument shifted by the counsel for the applicant to advance that there was a failure to take into account para.4.30.  The argument then shifted again to suggest there was a failure to take into account para.4.1

1. It is not necessary for the Tribunal to refer to all the evidence before it. It is a matter for the Tribunal as to what country information it accepts. The proposition that there was a failure to take into account a relevant consideration in relation to that report is completely lacking in substance and fails to make out any jurisdictional error.

2. The embedded submission in relation to an assertion of an error in respect of the finding by the Tribunal, referring to particular country information being read in its context and not as specifically applying to a particular area, was further developed by reference to the content of para.4.30 of the thematic report.  Suffice it to say, it was a matter for the Tribunal to determine what finding is to be made from the country information.  The adverse finding by the Tribunal in para.62 was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 1(a) of the further amended application fails to make out any jurisdictional error.

3. In relation to ground 1(b), it is clear that the Tribunal referred to the post-dated submissions filed on behalf of the applicant, dated 24 June 2015. It was not necessary for the Tribunal to set out the whole of those submissions.  There was no failure by the Tribunal to have regard to relevant information in relation to the submissions.

4. Again, embedded in this ground was an alleged adverse finding in relation to para.64, taking into account what was said in para.63 of the Tribunal’s reasons. The attack was, in substance, made upon the reference by the Tribunal in reference to a quarterly report period, April to June 2014, from the FATA Research Centre in respect of which the Tribunal said that the material on which the applicant relied was dated.  That finding by the Tribunal was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 1(b) fails to make out any jurisdictional error.

5. Ground 1(c) is also without substance in the assertion that there was a failure to have regard or take into consideration the relevant report.  As para.65 of the Tribunal’s reasons makes clear that the Tribunal had regard to FATA Research Centre report which was expressly identified in the footnote.  Again, there was an embedded challenge in this ground to the finding that the material was dated. That finding was open in the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 1(c) fails to make out any jurisdictional error.

6. In relation to ground 1(d), there is an assertion of a failure to take into account submissions, dated 17 December 2015, which again the Tribunal expressly referred to in para.67 and summarised.  The fact that the Tribunal did not refer to the whole of the content of the submission does not identify any basis for a ground advanced of a failure to have regard to a relevant consideration. 

7. Again, embedded in this ground was, in fact, a further challenge to the finding of fact in para.68 in relation to the Tribunal rejecting the applicant’s submission on the basis that it does not reflect the weight of the evidence which indicates there has been a sustained improvement in the security situation in the Kurram agency. That finding was open on the material before the Tribunal and cannot be said to lack in an evident and intelligible justification. Ground 1(d) fails to make out any jurisdictional error.

8. In relation to ground 1(e), it is clear from the Tribunal’s reasons that it took into account the country information available to it. It is a matter for the Tribunal to determine what country information to accept or to reject. The Tribunal specifically referred to the applicant’s submissions, dated 24 June 2015, in its reasons at para.46 as well as in para.69, in the context of which the Tribunal referred to a particular decision of the Tribunal, though different constituted, and the information available at that time in relation to the road between two particular locations. The Tribunal relevantly said in para.70 it considered that information was dated.  That adverse finding was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

9. Counsel for the applicant also sought to advance that there was a failure to have regard to paras.2.24 and 2.27 in the DFAT country report, dated 14 April 2015.  That DFAT country report was expressly referred to in the Tribunal’s reasons and particular paragraphs identified in the footnotes.  It was not necessary for the Tribunal to identify or refer to the whole of the report, and there was no substance of the contention that there was a failure to take into account a relevant consideration in relation to the DFAT country report, dated 14 April 2015.

10. In these circumstances, the further amended application fails to make out any jurisdictional error. However, before I leave the further amended application, I do wish to emphasise that it is expected that when an amended application or a further amended application is advanced by a legal practitioner purporting to identify that the relevant ground is one of failing to take into account a relevant consideration, it should not have hidden or embedded in it grounds in respect of a challenge to particular findings.  They are independent grounds that should have been clearly and specifically articulated if they were to be developed.

11. For the reasons I have given, those arguments were, in fact, without substance and failed to identify any jurisdictional error.

12. It is an important role that legal representatives play in appearing before the Court to assist the Court in the efficient and expeditious disposition of the work before the Court. Prolix grounds are as unhelpful as grounds that do not properly identify what the alleged jurisdiction error may be or mask the error that is sought to be developed.  I make these observations to try and assist legal representatives understand the importance of and give careful attention to identifying grounds of jurisdictional error in a clear succinct fashion that readily permits both the development of the argument in a logical fashion, as well as submissions to be developed by both parties to ensure a fair hearing.

13. The Court does understand that there will always be rare occasions where fresh grounds do arise and belated applications are made to amend, but that should be the exception to the rule. Ordinarily the Court’s directions relating to the filing of amended application where there are legal representatives should be given timely attention, and the orders complied with within the timetable specified by the Court. 

14. A redeeming feature in the present case in relation to the belated further amended application is that there was a genuine endeavour by the legal representative to contract the issues.  However, for the reasons I have given, that contraction should have more clearly identified what the jurisdictional errors were, rather than having in a heading that masked the fact that there were challenges still to the findings of fact that were made which the applicant wished to advance.

15. A separate and distinct clear ground should have been articulated for those findings the subject of an alleged jurisdictional error, otherwise than under the heading of a failure to take into account a relevant consideration.  That said, the Court appreciates that it was of assistance to have a refined presentation of the grounds of jurisdictional error and the oral submissions advanced by the legal representative in relation to those grounds was helpful to the Court in understanding the arguments advanced on behalf of the applicant.

16. The further amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  20 May 2016