Afo17 v Minister for Immigration

[2019] FCCA 3270

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFO17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3270

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) (Subclass 866) visa – whether the Tribunal did not take into account relevant considerations – whether the Tribunal’s decision was affected by bias – whether the Tribunal afforded the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 476

Applicant: AFO17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 25 of 2017

Judgment of: Judge Street

Hearing date: 13 November 2019

Date of Last Submission: 13 November 2019

Delivered at: Perth

Delivered on: 13 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms E Tattersall
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,700.00.

DATE OF ORDER: 13 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 25 of 2017

AFO17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 December 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) (Subclass 866) visa (“Protection visa”).

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant undertook tertiary education and obtained a doctorate of veterinary medicine in Pakistan. In 2007, the applicant travelled to Iran as a tourist. On 18 November 2011, the applicant arrived in Australia as the holder of a Student (Class TU) (Subclass 572) visa.   The applicant made return trips to Pakistan from Australia on two occasions, from 15 June 2012 until 9 July 2012 and from 18 October 2013 until 15 December 2013.

3. On 19 August 2014, the applicant applied for a Protection visa. The applicant claimed to fear harm by reason of being from a prominent Shia family, being a Shia and Sunni extremists allegedly wanting to kill him.

4. On 9 November 2015, a delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 18 November 2015, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 10 August 2016, the Tribunal invited the applicant to attend a hearing on 18 October 2016. The applicant appeared on that date to give evidence and present arguments. The transcript of the hearing has been tendered into evidence.

6. The Tribunal identified the background to the applicant’s application for a Protection visa. The Tribunal also set out the relevant law. The Tribunal also summarised the applicant’s claims and raised issues with the applicant in the course of the hearing.

7. The Tribunal referred to a letter provided to it by the applicant from the president of a particular body, identifying the village from which the applicant comes and that, during a particular event, there was heightened security for the safety of Shias. The letter also identified that the SSP as a violent Shia enemy terrorist organisation whose District President belongs to the same village from which the applicant comes and that the SSP conduct secret meetings in that village.

8. The Tribunal referred to the applicant’s claims related to him being assaulted in 2006. The Tribunal referred to the applicant’s evidence that he was not prominent at that time but that he became prominent. The Tribunal found the applicant’s evidence in relation to this event to be inconsistent.

9. The Tribunal referred to the applicant’s claims in respect of alleged false charges against his father. The Tribunal noted that the applicant’s father, on the material provided, was charged with offences and acquitted of those charges in July 2011. The Tribunal found that the documents provided supported the contention that the charges were without foundation. The Tribunal, however, found that the applicant’s father was not denied access to the legal system or justice due to his religion or for any reason.

10. The Tribunal referred to the applicant’s claims in respect of his father being taken to prison on a regular basis The Tribunal found this claim to be vague, lacking in detail and inconsistent with the applicant’s evidence and claims.

11. The Tribunal referred to the applicant’s claim in respect of his brother being seriously attacked in 2014. The Tribunal raised with the applicant its concern in respect of the event the applicant alleged occurred and did not accept the applicant’s explanation. The Tribunal referred to the ease of obtaining fraudulent documents in Pakistan and gave the letters of support little weight as evidence that the applicant’s brother was harmed by any person.

12. The Tribunal referred to the applicant’s evidence about being kidnapped. The Tribunal found the applicant’s evidence in relation to the harm he experienced to be inconsistent and vague, which caused the Tribunal to find that the events did not happen.

13. The Tribunal referred to the applicant’s claim that he was prominent in the community because he introduced the ISO into the village. The Tribunal did not accept the applicant has a profile with the ISO that would cause him to come to the attention of Sunni extremist organisations and that any profile he has is limited to his home area.

14. The Tribunal referred to the delay in the applicant applying for protection. The Tribunal found parts of the applicant’s evidence had been embroidered for the purpose of enhancing his application for protection, particularly his claims as to active involvement in the ISO and the Shia community.

15. The Tribunal accepted that the applicant and his family are Shia Muslims. The Tribunal also accepted that the applicant was involved with the ISO. The Tribunal did not accept, however, that the applicant has a profile over and above other members of the Shia community and the ISO in his home area.

16. The Tribunal referred to the applicant’s claimed fear of harm from Sunni extremist groups, such as the Taliban and LeJ, because of him and his family being Shias. The Tribunal referred to country information and the village from where the applicant had come. The Tribunal considered that there is a chance, being a small but real chance, that the applicant, as a male Shia, will face serious harm if he returns to his home area.

17. In these circumstances, the Tribunal turned to the issue of relocation. It is apparent on the face of the transcript that the issue of relocation was raised with the applicant at the hearing by the Tribunal. The Tribunal identified, having found there to be a real chance that the applicant will face serious harm upon his return to his home region, that it must consider whether there is a real chance that the applicant will suffer serious harm if he relocates to another area of Pakistan, such as Karachi, Islamabad or Lahore. The Tribunal referred to having discussed relocation with the applicant and referred to the applicant’s claim that he would not be safe from the Taliban and Sunni extremists anywhere in Pakistan because of their network.

18. The applicant also claimed that Sunni terrorist organisations are targeting educated members of the Shia community, such as doctors and engineers, and, as an educated Shia, he will also be targeted as he is a doctor. The Tribunal correctly identified that the applicant had a Doctorate of Veterinary Science. The Tribunal did not accept that being awarded a Doctorate of Veterinary Science will result in the applicant being identified as a medical practitioner or targeted as a medical practitioner. The Tribunal did not accept that the applicant will be targeted and killed by the Taliban or other Sunni extremist groups because he will be considered to be a medical officer.

19. The Tribunal referred to country information in relation to violence against Shias. The Tribunal found that the applicant is not a high profile professional. The Tribunal did not accept that, on his return to Pakistan, the applicant will engage in a high profile profession. The Tribunal referred to the fact that the applicant may choose to work as a veterinarian on his return to Pakistan. The Tribunal did not accept that this will increase his profile to that of a high profile professional. The Tribunal did not accept that the applicant has a profile over and above other Shia Muslims. The Tribunal did not accept that the applicant is of any interest to the Taliban or that they will invest resources in locating him through any means, including through his telephone.

20. The Tribunal referred to the applicant’s circumstances. The Tribunal did not accept that the real chance of serious harm exists across Pakistan generally. Based on the evidence before it, the Tribunal did not accept that the applicant or his family has such distinction in his home area as a Shia Muslim or member of the ISO that the Taliban would seek to harm him by pursuing him in other locations within Pakistan. The Tribunal found that there is not a real chance the Taliban would pursue the applicant outside his general home area for reasons of his activities as a member of the ISO or the Shia community.

21. The Tribunal referred to country information and, in particular, the targeting of high profile professional Shias. Whilst accepting that the applicant would be able to be identified as a Shia, the Tribunal found that the applicant would be able to practice his Shia faith, be observant and be involved in Shia religious activities without there being any real chance or real risk of harm if he were to relocate to one of the areas identified.

22. The Tribunal referred to the issue of whether or not it was reasonable for the applicant to relocate to the identified areas. The Tribunal took into account country information and noted that the applicant is an educated person with English and Urdu language skills and that he has found work in Australia. The Tribunal also referred to country information identifying that those with foreign language skills are more likely to find employment on relocating.

23. The Tribunal also noted the applicant’s evidence that his family provides him with considerable financial support and have done this during his time in Australia. The Tribunal did not accept that this financial support would be withdrawn at any time.

24. Taking into account the applicant’s particular circumstances, the Tribunal found that the applicant will be able to obtain work of some kind in Pakistan if he were to relocate to one of the areas identified. The Tribunal referred to the applicant’s education, languages and his experience in finding employment and accommodation. The Tribunal did not accept that the applicant will be denied employment, that he will not be able to secure some form of work in a reasonable period or that he will not be able to find some form of accommodation within a reasonable period.

25. The Tribunal did not accept that it is unreasonable for the applicant to relocate because of a lack of financial resources. The Tribunal also identified that the applicant may not have the benefit of familial support in the relocated area and that this may make his life more difficult. The Tribunal, however, referred to the country information and was satisfied that the applicant has skills and attributes to gain employment. The Tribunal also referred to the period in which the applicant had lived in Australia. The Tribunal found that it would not be unreasonable for the applicant to relocate away from familial support in the circumstances.

26. The Tribunal found that it was reasonable, and in a sense practicable, for the applicant, taking into account the applicant’s circumstances, to relocate to Lahore or a town or a city in Sindh or Karachi where the Tribunal found there is no appreciable risk of the accounts of the persecution claim. The Tribunal, having considered the totality of the applicant’s circumstances, did not accept that there is a real chance the applicant would be persecuted for one or more of the 1951 Refugee Convention reasons if returned to Pakistan. In these circumstances, the Tribunal found that the applicant did not have a well-founded fear of persecution.

27. The Tribunal referred to the issue of complementary protection. The Tribunal found that there is not a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Pakistan.

28. The Tribunal found that the applicant did not meet the criteria in ss 36(a) or 36(2)(aa) of the Act.

29. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 13 January 2017. On 12 April 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit, evidence and submissions.

2. The applicant has filed two affidavits, one dated 24 May 2017 and a more recent affidavit dated 1 October 2019 which annexed the transcript of the hearing. No other documents have been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant addressed the Minister’s submissions in relation to the applicant’s grounds and took issue with the substance of the submissions as to why the Minister submitted there was no relevant error. The submission reflected a disagreement with the adverse findings of the Tribunal which were open for the reasons given by the Tribunal, as summarised above. The submissions otherwise identified impermissible merits review.

5. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. Failed to take into account a relevant considerations.

   2. She did not consider brother medical report.

   3. AAT Member was biased against applicant, as shown by her demeanour at hearing and did not afford procedural fairness.

   4. She did not consider our our issues related to relocation. Tribunal did make one mention of the issue of relocation and it did not clearly bring it to my attention in a way that would have allowed me to understand the significance and address it.

   5. Tribunal considered the risks I would face in those areas comparatively with the rest of Pakistan, rather than absolutely. 

Ground 1

1. In relation to ground 1 and the applicant’s brother’s medical report, the applicant took issue with the Tribunal’s assessment of the same which identified there was no cause of the relevant injuries identified in the report. That was a correct identification of the medical report by the Tribunal. There is no basis to say that the Tribunal failed to take into account the brother’s medical report. The Tribunal had an active intellectual engagement with the applicant’s claims and evidence. The applicant’s brother’s medical report did not give rise to any relevant error by the Tribunal and no jurisdictional error arises by reason of the reference to the same.

2. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant submitted that the Tribunal was biased and made allegations of bias flowing from what occurred during the hearing and what was stated in the transcript, as well as alleging that the Tribunal member’s demeanour supported an allegation of bias. The applicant also submitted that, at a particular point in the transcript, the Tribunal member was shouting at the applicant. There is no evidence to support that the Tribunal member was shouting at the applicant.

2. Bias is a serious allegation and must be clearly proved. The applicant’s submission that the Tribunal was biased by reference to the transcript are without substance. The applicant’s reference to the transcript is entirely consistent with the applicant being given a real and meaningful opportunity to engage with the issues of concern by the Tribunal.

3. The applicant disagreed with the questions not being framed in a more polite manner with the word “please”. That is not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits.

4. The applicant also referred to his claims in answer to the questions in respect of his ability to relocate and his fears. The applicant submitted that, by rejecting the same, the Tribunal was biased. It is apparent that the Tribunal accepted that the applicant faced a real risk of serious harm or significant harm in his own village. It was for that reason that the Tribunal member turned, as the Tribunal was required, to the issue of relocation.

5. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Having read the transcript, the Court is satisfied that the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No case of bias is made out.

6. To the extent that the applicant alleges that he was not afforded procedural fairness, it is apparent that the Tribunal raised with the applicant in the course of the hearing the issues of concern for the Tribunal and provided the applicant an opportunity to respond to the same. The applicant submitted that there was no question asked of him, in respect of relocation, about his financial capacity to address relocation and, in that regard, also referred to the evidence he had given about his sustenance by working on a dairy.

7. The Tribunal clearly gave the applicant an opportunity to identify his concerns in respect of relocation. The applicant did not suggest financial capacity as being a particular matter of concern in his answers to the Tribunal. Including the qualification that the applicant has obtained, it is apparent that the Tribunal took into account the applicant’s personal circumstances in considering whether or not relocation was practicable and reasonable for the applicant.

8. It was not necessary for the Tribunal to expressly ask the applicant a question about his financial means simply because he had sustained himself by working on a dairy. The applicant’s qualification also speaks for itself. The Tribunal’s reasons were logical and rational in relation to the adverse finding in respect of the reasonableness and practicality of relocation. There was no denial of procedural fairness.

9. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this appears to be a reference to asserting that the Tribunal did not make mention of the issue of relocation. That proposition on the face of the transcript is false. It is clear that relocation was an issue raised by the Tribunal with the applicant on the face of the Tribunal hearing. Further, it is clear on the face of the transcript that the applicant understood the questions he was being asked and engaged with the same.

2. There is no substance in the assertion that the applicant makes in ground 3 that he did not understand the significance of the questions. On the evidence before the Court, the Court is satisfied the applicant had a real and meaningful hearing before the Tribunal and was able to understand and respond to the Tribunal.

1. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant submits that the Tribunal did not consider the risks that the applicant would face within the rest of Pakistan. It is clear that the Tribunal considered those risks in relation to the applicant and the applicant’s circumstances. The Tribunal made adverse findings which were open to the Tribunal for the reasons given by the Tribunal.

2. No jurisdictional error is made out by ground 4

Ground 5

1. The Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, correctly applied the relevant law. There is no basis to find that the Tribunal misapplied the real chance or real risk tests. The Tribunal did not apply a comparative risk assessment in determining whether the applicant met the statutory criteria.

2. No error as alleged in the application is made out.

Applicant’s affidavits

1. The applicant’s affidavit dated 24 May 2017 was admitted subject to relevance and identifies disagreements with the adverse findings by the Tribunal in respect of the applicant’s claims. The substance of the affidavit is to invite merits review. This Court does not have power to review the merits. Nothing in the applicant’s affidavit dated 24 May 2017 identifies any jurisdictional error.

2. In relation to the applicant’s affidavit dated 1 October 2019, the Court notes that the applicant complains about his failure to attend the interview before the delegate. What occurred before the delegate is not capable of giving rise to any error by the Tribunal. Further, it is apparent that the Tribunal took into account that the applicant failed to attend the interview before the delegate and the Tribunal did not make any adverse findings because of the non‑attendance. Further, the Tribunal was not required to refer to every piece of evidence before the Tribunal.

3. The applicant’s complaint that the Tribunal did not take the applicant’s claims of fear of harm seriously is inconsistent with the face of the Tribunal’s reasons and inconsistent with a finding favourable to the applicant in respect of a real chance or a real risk of serious or significant harm in his own village. The Tribunal clearly had an active and intellectual engagement with the applicant’s claims in evidence.

4. It is also apparent that the Tribunal considered the applicant’s claimed fears, alleged threats and alleged harm both to the applicant and his father and his brother. The assertion that the Tribunal did not consider the applicant’s documents supporting his claims is inconsistent with the face of the Tribunal’s reasons.

5. As already identified, it was not necessary for the Tribunal to refer to every piece of evidence. To the extent that the Tribunal identified a particular document being given limited weight, taking into account the prevalence of fraud, the Tribunal’s reasons in that regard were open to it. Further, it was a matter for the Tribunal to determine what weight to give to the evidence before it.

6. The proposition that the Tribunal was required to verify the applicant’s circumstances is misconceived. It was for the applicant, under s 5AAA of the Act, to satisfy the Tribunal of his claims for protection. Further, there is no easily ascertainable critical fact which was identified that could be said to give rise to any obligation to make inquiry. Nothing in the applicant’s affidavit of 1 October 2019 makes out any jurisdictional error.

7. As the application does not identify any jurisdictional error, the application is dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 13 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  24 January 2020