AFL15 v Minister for Immigration

[2016] FCCA 2086

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2086

Catchwords:
MIGRATION – Whether the Tribunal failed to consider the Applicant’s evidence and his claims – whether the Tribunal failed to accord the Applicant procedural fairness – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5F, 424AA

Cases cited:

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 7
NAHI v Minister for Immigration a& Multicultural & Indigenous Affairs [2004] FCAFC 10
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: AFL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 532 of 2015

Judgment of: Judge Jones

Hearing date: 18 May 2016

Date of Last Submission: 18 May 2016

Delivered at: Melbourne

Delivered on: 15 August 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 17 March 2015 is dismissed.

2. The Applicant pay the First Respondent’s costs.  

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 532 of 2015

AFL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. The Applicant is a 55 year old citizen of Pakistan, who arrived in Australia on 18 September 2010 on a Visitor visa. Immediately prior to arriving in Australia, he had lived and worked for 35 years in the United Arab Emirates (“the UAE”) as a security contractor for the Abu Dhabi National Oil Company. His wife and four children lived with him in the UAE until 2000, when they returned to live in Pakistan in Peshawar. From 2000, the Applicant returned to Peshawar each year for around 35 days.

2. On 25 February 2011, the Applicant’s wife and four children arrived in Australia from Peshawar.

3. An application for a Protection (Class XA) visa (“the visa”) was lodged by the Applicant’s wife on 18 April 2011. The wife made a number of claims to be a refugee. The Applicant and the four children were all named as dependant relatives, and they made no separate claims of their own (CB 36 to 95). The Applicant’s application as a member of his wife’s family unit was lodged by the Applicant, dated 18 April 2011 (CB 89-95). On 3 October 2011, a delegate of the Minister refused to grant the visa to the Applicants (CB 162-175).

4. On 28 October 2011, an application for a review of the delegate decision was lodged with the (then) Refugee Review Tribunal (“the Tribunal”) by the Applicants (CB 176-179).

5. The Applicant’s wife provided the Tribunal a Statutory Declaration dated 15 May 2012 (CB 110-122). The Statutory Declaration included claims to fear harm on account of coming to the negative attention of the Taliban due to ‘offences’ against Islam, including:

   a)her husband was living abroad and working for a multi-national oil company which was seen as being pro-American, and allowing the United States to control oil production in the Middle East (CB 117);

   b)her husband would be in extreme danger upon returning to the Federally Administered Tribal Areas (FATA region) where the Applicant was born (CB 118);

   c)if the Taliban get their hands on her husband, given he had lived abroad for so many years, this would be seen as a dishonour to the country and to Islam, which would “make huge problems for him and for us if we were forced to return to Pakistan” (CB 118); and

   d)relatives of her husband were killed because of their involvement with her family (CB 119-120).

6. Hearings were conducted by the Tribunal on 15 May 2012 and 12 March 2013. The Applicant (in this matter), his wife and two of the four children gave evidence and presented arguments, and were assisted by a Pashto interpreter. They were represented by a Migration Lawyer at the first hearing.

7. On 1 June 2012, a written submission was lodged with the Tribunal on behalf of the Applicants. The written submission made no separate claims on behalf of the Applicant, but did repeat the wife’s claim to fear harm on account of coming to the negative attention of the Taliban due to her husband having worked for a multi-national oil company that was seen as being pro-American (CB 188).

8. The Tribunal affirmed the delegate decision on 27 June 2013 (CB 403-440) (“the first Tribunal decision”).

9. Following a hearing in relation to an application for judicial review, Orders were made by this Court quashing the Tribunal decision and remitting the matter to the Tribunal for re-determination (CB 441-442).

10. The second Refugee Review Tribunal (“the second Tribunal”) conducted separate hearings of the Applicant’s claims and those of his wife and children, and produced separate decisions in relation to the Applicant and in relation to the wife and four children, the latter being treated as members of the same family unit.

11. The second Tribunal found that the Applicant and wife were no longer members of each other’s family unit (CB 450 at [10]):

    a)by the time the applications for review were considered, on remittal, the Applicant and the wife no longer lived together. The two daughters were living with the wife and two sons were living with the Applicant. The second Tribunal note that an Intervention Order had been made prohibiting the husband from any contact with the wife and two daughters (CB 450 at [11]);

    b)the second Tribunal was satisfied that the husband was no longer the spouse of the wife within the meaning of s.5F of the Migration Act 1958 (Cth) (“the Act”) (CB 450 at [10]);

    c)the Applicant’s daughters and sons were over the age of 18 and not substantially dependent on the Applicant (CB 450 at [11]); and

    d)the wife was not substantially dependent on the Applicant (CB 450 at [11]).

12. The second Tribunal conducted a hearing on 11 February 2015, to consider the Applicant’s claims only. The Applicant was assisted by an interpreter. The second Tribunal handed down its decision on 27 February 2015, affirming the delegate’s decision in relation to the Applicant (“the second Tribunal decision”) (CB 448-455).

13. The Minister has informed the Court that a separate hearing was held, and decision made, in relation to the Applicant’s wife and the four children by the same Tribunal Member. In that case, the delegate’s decision was remitted back to the Department of Immigration and Border Protection (“the Department”) for reconsideration, on the basis that the Applicant’s wife, and their two sons now aged 19 and 21, would face a real chance of suffering violence at the hands of the Applicant, and would be unable to secure state protection from such violence.

14. The Applicant filed an application for judicial review of the second Tribunal decision on 27 February 2015, which is the subject of the current proceeding (CB 1-4). The Grounds specified in the application are:

    1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (The Tribunal) which a decision was made on 03 March 2015 where the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Protection Visa.

    2. The tribunal constructively failed to exercise its jurisdiction.

    PARTICULARS

    (i) The applicant provided information to the Tribunal to corroborate his claims.

    (ii) The tribunal failed to document that information.

    (iii) The tribunal gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the information provided.

    (iv) It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the information corroborated his claims.

    PARTICULARS

    I. Tribunal failed to consider adequately or at all the applicant’s claims for a Protection Visa.

    II. The tribunal failed to comply with the rules of national justice and contravened the Migration Act 1958.

    III. The tribunal’s decision was unreasonable given the weight of the evidence provided to the tribunal.

Applicant’s Claims

1. The Applicant’s claims, as summarised by the second Tribunal, were that he feared a return to Pakistan because (CB 451 at [15]):

   a)he would be in danger as his wife had run a boutique and his children had attended an English school;

   b)people in Peshawar believed he had been working for a Western or US owned Company in Abu Dhabi, and that he was a spy for Western countries;

   c)people from his tribal area, (FATA) or Kurram Agency, were more dangerous than the Taliban, and supported the Taliban;

   d)he had sent his daughter to study in the West, and his son, who resides in Australia, was perceived to have married a Western woman;

   e)several of his relatives had been killed due to tribal differences, and another had been kidnapped; and

   f)the main threat to him was from Taliban supporters.

2. The second Tribunal noted that the Applicant’s claims to fear harm from the Taliban due to Westernisation were set out in the wife’s statutory declaration sworn on 15 May 2012 and in the first Tribunal decision (CB 451 at [16]). The Tribunal also noted that Applicant stated at the hearing that he was targeted in Peshawar because he was the head of the household, and therefore held responsible for the conduct of his wife and children (CB 452 at [18]).

Second Tribunal Decision

1. The findings of the second Tribunal, which formed the basis for it  rejecting the Applicant’s claims, were accurately summarised by the Minister in the written submissions as follows:

   a)the Applicant’s wife and children had not received the number and level of threats as claimed, as they would not have received such a level of threats over an extended period without the threats being acted on (CB 452 at [21]);

   b)the Applicant had not been targeted by extremists in Peshawar during his visits, and he was not of interest to anyone in Peshawar who might want to harm him (CB 452 at [22]);

   c)the Applicant did not have a profile that would make him a target of extremists on return to Peshawar, as:

   i)his employment in Abu Dhabi would not give rise to a view that he is pro-Western (CB 452 at [18] and [23]);

   ii)information before the Tribunal did not support a view that parents of children attending English-style grammar schools or being schooled in Australia or the UK would be targeted (CB 452-453 at [23]);

   iii)his son’s marriage in Australia (to a Muslim woman), even if she was wrongly thought to be a non-Muslim, would not be held against the Applicant (CB 453 at [23]);

   iv)he would not be targeted or held responsible for the attitudes and behaviours of his wife and children in future when he was not threatened or targeted in the past (CB 453 at [23]);

   d)the second Tribunal did not accept that the deaths of the Applicant’s cousins had anything to do with their relationship with him or his family, and found that while the kidnapping of another cousin for ransom in 2010 may have occurred, that incident was not related to the Applicant and did not occur because of the Applicant (CB 454 at [27]);

   e)the Applicant was not on a hit list of militants, and had not been threatened in the past (CB 453 at [24]); and

   f)the Applicant would not be harmed in Pakistan because he had spent four years in Australia, given the pervasive nature of Western influence in Pakistan, with many people having relatives living abroad (CB p 453 at [24]).

2. The second Tribunal did not accept that the Applicant faced a real chance of serious harm from his tribal area if he returned to Pakistan, as he had no reason to return to his tribal area where he had not lived for 35 years. Consequently, the second Tribunal found that the Applicant would not face a real chance of serious harm arising from the insecurity in the Kurram Agency in the FATA region. He had not been harmed in the past by persons with conservative views in Peshawar, and did not have a profile that would give rise to a real chance of being targeted (CB 454 at [28]-[29]).

3. The second Tribunal was satisfied that the Applicant did not have a well-founded fear of persecution for a Convention reason, and that there were not substantial Grounds for believing that, as a necessary and foreseeable consequence of the Applicant being returned to Pakistan, there was a real risk that he would suffer significant harm for any reason (CB 455 at [30]-[31]).

Judicial Review

1. The Applicant was assisted at the judicial review hearing by an interpreter in the Pashto and English languages. As the Applicant was self- represented, I explained to him the nature of judicial review proceedings and the difference between a judicial review conducted by the Court and a merits review conducted by the Tribunal. I also explained the process which would be followed at the hearing.

2. I then proceeded to ask the Applicant to explain his Grounds of review to the Court. It became apparent that he did not understand what was meant by the particular Grounds specifed in his application. He informed the Court that they had been prepared by another person. Consequently, I asked him to tell the Court what was wrong with the Tribunal decision. His submissions were as follows:

   a)the rest of his family were granted a visa and he did not understand why he was not, as his claims and their claims were the same. He agreed that he and the wife were separated but maintained that their claims for a Protection Visa were the same. He repeated the claim that as the head of the family, he was responsible for the Taliban targeting his family in Peshawar;

   b)he lived in the upper Kurram Agency at the border of Pakistan and Afghanistan. He said it was a very conservative area where the Taliban were active and that he would be targeted by them if he returned to Pakistan; and

   c)he had medical problems and if he were returned, he would die because of these medical problems.

3. I will deal with the matters raised by the Applicant in his submissions, together with the Grounds specified in his application for judicial review, to the extent that they overlap. I note that the first specified Ground of review in the application (CB 2, and [14] above) is not a Ground of review but merely a recitation of the facts. I will disregard this, therefore, in considering the application for judicial review.

4. With respect to the first matter raised by the Applicant in oral submissions; that being that the rest of his family were granted a visa and he was not, the Minister points out that the claims by the wife and Applicant were different. The only overlap the Minister submits was the general background relevant to the wife and children and to the Applicant. The Minister referred to the basis for the grant of visas for the wife and children, being that the Applicant’s wife, and their two sons, now aged 19 and 21, would face a real chance of suffering violence at the hands of the Applicant, and would be unable to secure state protection from such violence.

5. I do not have a copy of the Tribunal decision remitting the wife’s and children’s application for visas for reconsideration to the Minister. However, I accept the Minister’s characterisation of the reasons for that decision as correct. The Minister is a model litigant and his legal representatives owe a duty to this Court, which I accept they have discharged.

6. Thus, the basis for the Applicant’s first and primary oral Ground of judicial review is flawed. His assumption that his and his family’s claims were the same is incorrect.

7. The Applicant claims, in his written Grounds, that the Tribunal failed to adequately consider his claims (see Particular I. in the Applicant’s application for judicial review at CB 3). I disagree for the reasons which follow.

8. The duty of the Tribunal under the Act is a duty to review. There is no general obligation on the Tribunal to investigate an Applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in a joint judgment. A Tribunal is not required to accept uncritically any and all claims made by an Applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.

9. In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”), the Full Court stated at [32] to [34]:

   32. The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

   33.    The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

   34     . Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

10. I am satisfied that the Applicant’s claims were identified by the second Tribunal (see [15] above), and dealt with by the second Tribunal (CB 452 to 455 at [18]-[31]). The second Tribunal simply did not accept the Applicant’s claims about the level of past harm experienced by his wife and children, and it did not accept that he was targeted by extremists, nor that he was on a militant hit list. It did not accept that he has a profile that would make him a target of extremists if he returned to Peshawar.  

11. No jurisdictional error arises from the first matter identified by the Applicant in his oral submissions or his Ground specified in Particular I. of his application.

1. I agree with the Minister’s submission, when referring to the Particulars to Ground 2 specified in the application for review, that the second Tribunal did not decide to give no weight to information provided to it by the Applicant “to corroborate his claims” on the basis of credit findings. The fact is the Applicant did not lodge any materials with the second Tribunal. In those circumstances, the second Tribunal could not have identified that information. Rather, the second Tribunal considered country information; for example, the DFAT Country Information Report Pakistan 2013 - and placed weight on that country information in evaluating the claims made by the Applicant (CB 453 at [24]). This was an exercise that the Tribunal was entitled to engage in and indeed was obliged to engage in, in making findings about the Applicant’s risk of harm if he returned to Pakistan.

2. In MZYTS, in referring to the requirement on the Tribunal to engage in a predictive exercise as to the risks a person may face if returned to his or her country of nationality, the Full Court said:

   35.    The determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task referred to in Chan and Guo. It can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there. It is appropriate to recall how the task was described by Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395) at [73]-[76]:

   The objective element requires the decision-maker to decide what may happen if the Applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular Applicant. It requires identification of the relevant Convention reasons that the Applicant has for fearing persecution. It is necessary, therefore, to identify the “reasons of race, religion, nationality, membership of a particular social group or political opinion” that are engaged.

   Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an Applicant when living in the country of nationality. If an Applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the Applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.

   Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the Applicant have been, or are being, treated in the Applicant's country of nationality. That is useful because it may assist in predicting what may happen if the Applicant returns to the country of nationality. But, as with any reasoning of that kind, the critical question is how similar are the cases that are being compared.

   Because reasoning of the kinds just described is often employed, it is perhaps inevitable that those, like the Tribunal, who must deal with large numbers of decisions about who is a refugee, will attempt to classify cases. There are dangers in creating and applying a scheme for classifying claims to protection. Those dangers are greatest if the classes are few and rigidly defined. But whatever scheme is devised, classification carries the risk that the individual and distinctive features of a claim are put aside in favour of other, more general features which define the chosen class.

3. I concur with the Minister’s submission that it was for the second Tribunal to decide what material to rely upon in reaching its decision, and the weight to be placed upon such material, and it is not open to the Court to substitute its own view of the material, even if that view is different from that reached by the Tribunal: NAHI v Minister for Immigration a& Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ.

4. No jurisdictional error is raised by Ground 2 as specified in the Applicant’s written submissions.

5. The second matter raised by the Applicant in his oral submissions was that he could not return to live in upper Kurram Agency, as he would be targeted by militants. The second Tribunal accepted that this was his tribal area. However, it found that the Applicant would have no reason to return to his tribal area. The second Tribunal took into account the undisputed evidence that the Applicant had lived in the UAE for around 35 years and, from 2000, resided with his wife and family in Peshawar when he returned to Pakistan. It found that the Applicant would, therefore, not face a real chance of serious harm or a real risk of significant harm arising from ongoing insecurity in the Kurram Agency (CB 454 at [28]). In raising this matter, the Applicant is in effect inviting the Court to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

6. No jurisdictional error is raised by this Ground.

7. I agree with the Minister’s submission that the Applicant’s reference in oral submissions to his ill health is not something that attracts the Refugee Convention or the complementary protection provisions of the Act. In particular, on the face of the decision record, the Applicant did not raise this with the second Tribunal during the course of its proceedings. His ill health was also not a matter referred to in documents provided in support of the Protection Visa prior to the second Tribunal’s hearing.

8. No jurisdictional error is raised by this Ground.

9. The Applicant did not expand on his Ground specified in Particular II, that the second Tribunal failed to afford him natural justice. In his oral submissions he did not say that he was not given a fair hearing. The Applicant accepted in these proceedings that he was living separately from his wife and two daughters. The Applicant did, in a somewhat tangential way, express his concern that his claim was not treated the same as the rest of his family. This may be a reference to the fact that the second Tribunal decided to conduct two separate hearings, one for his wife and children and one for him.

10. The reasons the second Tribunal gave for conducting separate hearings are summarised at [11] above. I am satisfied the Tribunal informed the Applicant about this matter, gave him an opportunity to respond to the information it had (CB 450 at [9]) and set out cogent reasons for deciding that the Applicant and his wife were no longer members of one another’s family unit, and that the wife and children remained as a family unit. The second Tribunal put to the Applicant at the hearing, pursuant to s.424AA of the Act, that he was living separately from his wife and two daughters, that an Intervention Order had been issued preventing him from contacting them, and that there had been no contact between them for some months. The Applicant did not contest this information, but did state that the complaints of domestic violence made against him by his wife were not true (CB 450 at [9]).

11. It was open to the second Tribunal to place weight on information that Intervention Orders had been made against the Applicant and that he had had no contact with his wife and daughters for some months, in concluding that the Applicant was no longer the spouse of his wife, as defined under s.5F of the Act. Having found that the Applicant and his wife were no longer members of one another’s family unit (CB 450 at [10]), the Applicant’s protection claims were appropriately dealt with separately, on their own merits.

12. The Applicant’s final Ground, as specified in Particular III, is no more than a disagreement about the findings of the second Tribunal and the way in which it dealt with the evidence before it. I agree with the Minister’s submission that this Ground “invites the Court to indulge in impermissible merits review.” As I have already noted, the second Tribunal decision dealt with each of the Applicant’s claims, its reasoning was cogent and it made findings that were open to it on the materials.

13. No jurisdictional error arises from this Ground.

Conclusion

1. For the reasons set out in this Judgment, the application for judicial review is dismissed, with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     15 August 2016