AEG15 v Minister for Immigration
[2015] FCCA 881
•9 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEG15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 881 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | AEG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 677 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 9 April 2015 |
| Date of Last Submission: | 9 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitors for the Respondent: | Ms L. Westen Minter Ellison |
ORDERS
The application for an extension of time is dismissed.
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 677 of 2015
| AEG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 10 November 2014 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa. The applicant requires an extension of time under s.477. The grounds in the application are as follows:
1. The Tribunal erred in applying the test of a well founded fear of persecution for the purposes of s. 36(2)(a) of the Migration Act.
Particulars
(a) The Tribunal erred in its consideration of whether the applicant could relocate within Pakistan by conflating the test reasonableness of relocation with that of whether he had a well founded fear of persecution in a place of possible relocation.
The application identifies on the first return date:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Court raised with Mr Karp of counsel that the Court was concerned as to whether or not the matter should be dealt with summarily. I take into account in considering the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].
Mr Karp sought to argue that the text identified MZYQU v The Minister for Immigration and Citizenship [2012] FCA 1032 at paragraphs 58 to 60 had not been correctly applied by the Tribunal. It is clear from reading the Tribunal decision as a whole that the Tribunal fully appreciated the need to consider the question of reasonableness of relocation and whether it was practicable for the applicant to relocate elsewhere. That appears clear from paras.28 and 29.
The finding made by the Tribunal in para.32 was clearly open on the material before the Tribunal as was the finding in the last sentence of para.38. It is clear from the reasons that the Tribunal has taken into account in their consideration of harm in respect of the applicant’s fears in respect of that relocation and the finding at para.38 was open on the material. Ground 1 is, in substance, an impermissible challenge to the findings of fact and does not disclose any arguable jurisdictional error.
The applicant applied for protection on 18 December 2012 which was refused on 21 August 2013. The applicant was interviewed on 21 August 2013 and, relevantly, the applicant appeared before the Tribunal on 3 November 2014 to give evidence and present arguments. That hearing was assisted with the benefit of an interpreter for the applicant and the applicant was represented by a registered migration agent. The Tribunal carefully identified the applicant’s claims and evidence and relevantly found that the applicant was not credible.
The applicant was found to be a citizen of Pakistan and the claims in respect of the visa were assessed as against that country. In respect to the findings that the applicant was not credible the Tribunal relevantly said as follows:
20. The Tribunal considers that the applicant’s claims that he could not obtain any medicine for his depression in Australia to be not credible. The Tribunal considers that had the applicant been on long term medication in Pakistan for depression that he would have sought treatment in Australia and obtained medication to assist him to manage his depression and anxiety. However, even accepting that the applicant has previously suffered from depression, which he managed with medication whilst he was in Pakistan, and anxiety and insomnia, the Tribunal considers that the applicant’s evidence to have been specifically targeted by extremist groups such that he and his father received threatening telephone calls to be unpersuasive. The Tribunal firstly considers that the applicant’s claim that his father had been telephoned by the telephone and threatened because he had made comments critical of the Taliban to be significant. The applicant’s evidence indicates that his father continues to reside with the applicant’s stepmother and his three half siblings in [P]. The Tribunal considers that had the applicant’s father made comments critical of the Taliban, and had he received threatening telephone calls, that this would be very concerned about the safety of his father and this issue would have been included in his statutory declaration, prepared with the assistance of his registered migration agent. The Tribunal considers that the applicant’s failure to mention these issues in his statutory declaration, in which he set out his claims to be a refugee, casts considerable doubts on the truthfulness of those claims.
21. The Tribunal also considers that applicant’s evidence during the hearing in relation to the threats and his claims made in the most recent submission to the Tribunal that his father is “well known” in his community and his comments which were critical of the Taliban had brought him to the attention of the Taliban to be unpersuasive. When asked at the hearing why his father is “well known” in the community, the applicant was only able to state that his father is known or “famous” for being an honest person and he opposes the Taliban. In response to the Tribunal’s comments that it would consider that the vast majority of Shias are opposed to the Taliban given its view that Shias are infidels, and he was again asked why his father is well known, the applicant stated that his father never talks badly about anyone and is a good person. When asked again on two further occasions whether his father had done anything in particular that brought him to the attention of the Taliban, the applicant stated that he had not. However, when asked about the submission that his father had made critical comments of the Taliban, the applicant stated that the submission is correct. When asked to provide further details of the critical comments, and asked how it is that his father is known to have made critical comments, the applicant stated that it is in the “normal way”. After a break of some 20 minutes, during which the applicant was able to speak to his representative, the applicant stated that he wished to add that his father spoke out against the Taliban publicly and that is why he was wanted by the Taliban.
22. The Tribunal considers that the evidence set out above indicates that it was only after considerable prompting that the applicant appeared to remember that he had made a claim that his father had made comments critical of the Taliban. However, despite this prompting he was then unable to elaborate on how his father did that until after a break during the hearing at which time he appeared to have been able to recall that his father had made public comments critical of the Taliban. As stated above, the Tribunal has had regard to the applicant’s claims regarding his mental health and the effect that this has had on his memory and ability to recall the sequence of events and facts. The Tribunal does not accept that this explains the applicant’s failure to mention to the Tribunal during the hearing, until specifically prompted, important aspects of his claims. Additionally, as discussed with the applicant during the hearing, the Tribunal considers that had the applicant’s father made critical comments against the Taliban he would have been unable to continue to reside safely in [P], as he has been doing for several years, including since he purportedly made critical comments about the Taliban which the applicant claimed resulted in him receiving threatening telephone calls. The Tribunal does not accept the applicant’s explanation, which was that his father is able to do so because he stays at home on his farm and takes additional care. As discussed at the hearing, the Tribunal considers that had the Taliban had any interest in his father that its members would have taken action against his father. The Tribunal is prepared to accept that the applicant’s father is well regarded and well known in the Shia community and he “helps people”. The Tribunal also accepts the applicant’s claim at the hearing that his father has a small farm in Pakistan and owns land. The Tribunal does not accept that the applicant’s father is well known by the Taliban or that he received telephone threats or that he was sought because he made comments critical of the Taliban.
23. The Tribunal also does not accept that the Taliban telephoned the applicant at work and made threats towards him. The Tribunal does not accept that there is any reason why the Taliban would have specifically targeted the applicant who had been residing in [P] for some years. The Tribunal accepts that the applicant is the eldest son of his father and there is evidence of targeted attacks against Shias in Pakistan. However, the evidence in relation to [P] indicates that the attacks in [P] are primarily in relation to suicide bombings and other bomb blasts which are aimed at places where Shias congregate, rather than aimed at individual Shias. The reports also indicate that although militant groups have undertaken attacks within the city of [P], much of their attention has been on blockading the [P]-[T] road, the only road linking [P] and upper [K] to the rest of Pakistan and that their aim is to attack Shias, particularly Hazaras, travelling on that road. The Tribunal has not accepted that the Taliban had specifically sought the applicant’s father, and the Tribunal is also not satisfied that there is any reason why they specifically targeted the applicant, who has not claimed to have done anything to have attracted the adverse attention of any extremist groups.
It was as a result of the finding in para.27 that the Tribunal turned to consider the issue of relocation and relevantly made a finding at the end of paragraph 32. The relevant findings were as follows:
32. The Tribunal accepts that the applicant has a Shia name and his identity card shows that he is from Parachinar, and that his accent and dialect may also identify him as being from Parachinar. Whilst the Tribunal is prepared to accept that the applicant has scarring on his back in accordance with Shia religious rites, the Tribunal does not accept that he will be identified as a Shia by his appearance. As discussed with the applicant during the hearing, although Hazara Shias are distinctive looking, other Shias are not. While some Turi Shias from Parachinar were kidnapped in Islamabad in December 2011, these appear to be isolated incidents and there is no evidence of ongoing targeting of Turi or [B] Shias in Islamabad or Rawalpindi. The Tribunal has also had regard to the submissions regarding the obiter comments of Driver J in in SZSSM v MIAC. The Tribunal accepts that the fact that Shias congregate together in places to which they have fled is evidence, at least in part, that they have done so because of their fear. Equally, the Tribunal considers that there are other reasons as to why Shias have congregated in particular areas, such as their desire to worship at the same places and to reside in areas with like-minded people. Whilst the Tribunal also accepts that the fact that Shias congregate together may make them more vulnerable, taking into consideration the size of the population and the limited number of reports dating back several years of attacks in Rawalpindi or Islamabad, the Tribunal is not satisfied that there is a real chance that the applicant would be the victim of isolated attacks on Shias or that the isolated incidents make it unreasonable or impracticable for the applicant to relocate to Islamabad or [R].
33. The Tribunal has accepted that there have been isolated attacks against Shia religious processions and places where large numbers of Shias are likely to gather, and there is some evidence that terrorist groups operate throughout Pakistan, including in urban areas. The Tribunal also accepts that Islamabad, the centre for government, has been subject to attacks in relation to some of its government buildings, including courts and other government agencies. The Tribunal considers that where the applicant is most likely at risk because he is a Shia is when he attends religious processions or is at a location where large numbers of Shias are going to gather. However, the attacks that have taken place on those occasions are sporadic, and considered in the context of the size of the Shia population, the Tribunal regards the risk of the applicant suffering serious harm on that ground to be remote. The Tribunal is also not satisfied that the applicant will have to modify his religious practise, as submitted by the representative. Thus, given the low levels of sectarian violence in Islamabad and Rawalpindi, and the applicant’s lack of a particular profile such that he would be sought by the Taliban or any of its associated extremist groups, combined with the large number of Shia Muslims in Pakistan, the Tribunal is satisfied that the chance of the applicant being harmed in an act of sectarian or generalised violence in Rawalpindi or Islamabad is remote. Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm for reasons of his Shia religion, or the fact that he is [B], Pashtun from [P], in Islamabad or [R].
…
36. The Tribunal is prepared to accept that the applicant has a “timid personality”. Although no evidence of the applicant’s mental health problems has been provided, the Tribunal has also accepted that he suffers from anxiety and depression, arising from the death of his mother at an early age, and as a result of the fact that he witnessed some violent incidents in Parachinar. However, his own evidence indicates that he took medication for his mental health condition which he obtained in Pakistan and that this assisted him to work for several years in Parachinar. As also discussed at the hearing, the applicant’s has travelled to Australia and, within Australia, from Sydney to Melbourne. This indicates that neither his timidity nor has his mental health condition affected has affected his ability to re-establish himself. The applicant’s own evidence also indicates that his mental health condition was manageable whilst he was in Pakistan. The Tribunal accepts that the applicant’s father assisted him to take his medication whilst in Pakistan, but does not accept that at the age of 28 years he requires his father to assist him to take medication, particularly given that he has managed to reside in Australia without his father since mid 2012, even though he has not taken medication during this period. The Tribunal is also not satisfied that his mental health condition would prevent him from obtaining work and integrating into society in either Rawalpindi or Islamabad. Additionally, as stated above, the Tribunal does not accept that the applicant has to modify his conduct in Islamabad or Rawalpindi in terms of the practice of his religion to avoid harm. As above, the Tribunal has given its reasons above as to why the risk of him suffering serious harm in Islamabad or Rawalpindi is remote. In making that assessment, the Tribunal has considered and is aware of the failure of Pakistani authorities to prevent attacks on Shias and prevent extremist groups from operating. The Tribunal acknowledges these submissions and the evidence provided in relation to this issue, but it does not alter the Tribunal’s view as to the risk of him suffering serious harm in either Islamabad or Rawalpindi. In all the circumstances, the Tribunal is satisfied that it is reasonable for the applicant to relocate to Islamabad or Rawalpindi, its twin city.
…
38. The Tribunal finds, therefore, that there is not a real chance that the applicant will be persecuted for reasons of his religion, ethnicity, membership of the [B] tribe, particular social group or imputed political opinion or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in another part of Pakistan, such as Islamabad or Rawalpindi. Accordingly, the Tribunal finds that the applicant does not have a well founded fear of persecution if he returns to Pakistan now or in the reasonably foreseeable future.
…
40. Section 36(2B) of the Act provides that there is taken not to be a real risk if it would be reasonable for the applicant to relocate to an area where there would not be a real risk that he or she would suffer significant harm. For the reasons discussed above, the Tribunal finds that it is reasonable for the applicant to relocate to an area of the country outside Parachinar and FATA, such as Islamabad and Rawalpindi where there would not be a real risk that he will suffer significant harm. As discussed above, the Tribunal has found that applicant will be able to reside safely in other parts of Pakistan, in particular in Islamabad or Rawalpindi. The Tribunal has also not accepted that the applicant fears harm on any other basis and has found that it is not satisfied that the fact that he is a “failed asylum seeker” who has been in Australia for an extended period will result in him suffering serious harm. The Tribunal is also not satisfied that the applicant will suffer significant harm for reasons associated with his application for asylum or presence in Australia for a reasonably lengthy period.
41. The Tribunal finds, therefore, that the applicant will be able to relocate to another part of Pakistan where there is not a real risk that he will suffer significant harm. Accordingly, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.
I am clearly satisfied that the findings of the Tribunal were open, that the applicant had a genuine hearing, that the proceedings are doomed to failure and that the proceedings have no reasonable prospect of success. The application for an extension of time is dismissed. The proceedings are summarily dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 13 April 2015
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