AGG15 v Minister for Immigration

[2015] FCCA 3128

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3128

Catchwords:
MIGRATION – Judicial review – Protection (Class XA) visa – application without merit ­ application dismissed.

Minister for Immigration and Citizenship v SZIAI[2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123; (2009) 111 ALD 15

Applicant: AGG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 103 of 2015

Judgment of: Judge Hartnett

Hearing date: 20 November 2015

Delivered at: Perth

Delivered on: 20 November 2015

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to Administrative Appeals Tribunal.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 103 of 2015

AGG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the court is an application for judicial review filed on 23 March 2015.  The application seeks judicial review of a decision of the Second Respondent (the Tribunal) dated 27 February 2015 wherein the Tribunal affirmed a decision of a delegate of the First Respondent dated 7 May 2014 to not grant the Applicant a protection (class XA) visa (the visa).

2. The grounds of the application are as set out below:

   “1The procedure is too quick.  I don’t have a second chance to provide more evidence.

   2 The Tribunal don’t (sic) asked (sic) me to provide the original documents.  I had all the original documents with me at all hearings.

   3 The Tribunal thinks it is not genuine to my evidence but the Tribunal did not communicate with my authority to confirm evidence documents.

   4 I had my passport since 2009, but that does not mean I had plan to travel with my mother to Umrah – I told the Tribunal my younger brother went to Umrah with my mother.

   5 I disagree the Tribunal comment, number 35.  He is not the driver only, he is also the active member as well.  Maybe the interpreter had a mistake to translate, He is active member that’s why target him, but luckily he saved his life.”

3. The application is supported by an affidavit sworn by the Applicant on 19 March 2015.  There are no factual matters deposed to in that affidavit.  It is a statement to the effect that the Applicant is appealing the decision of the Tribunal to the Court.

4. The First Respondent filed a response dated 30 March 2015 wherein the First Respondent seeks dismissal of the application on the basis that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal.  The First Respondent seeks that costs follow the event.  The First Respondent has filed, in accordance with consent orders made before Registrar Stanley on 24 June 2014, the court book. The contents of same are evidence in the proceedings before the Court.  The Court notes that the Applicant did not file any written submissions.  The First Respondent did so, those being dated 30 October 2015, and the First Respondent relies upon same. 

5. At the commencement of the hearing the Applicant indicated that he had been served with the First Respondent’s written submissions and the court book and that he had translated to him the First Respondent’s written submissions prior to the hearing this day.  At the hearing the Applicant was assisted by an interpreter fluent in the Pakistani, Urdu and English languages.

6. The Applicant sought an adjournment of the proceedings and handed to the court some medical documents.  Those medical documents were in respect of a discharge of the Applicant from the Royal Perth Hospital in February 2014.  There was further, a pathology request form, also issued in 2014.  There was of more recent origins a report from the Applicant’s treating psychologist of November 2015.  None of that evidence went to establish that the Applicant was unable to proceed with the hearing this day. The First Respondent opposed the granting of any adjournment.  The Court, whilst accepting that the Applicant is stressed and has been as a consequence of not only these proceedings, but the death of his daughter and mother, did not have sufficient evidence before it to accede to the adjournment application.  No evidence was provided by the Applicant’s treating general practitioner or any other medical practitioner which went to an inability on the part of the Applicant to fully participate in the proceedings this day. 

History

1. The Applicant is a citizen of Pakistan.  He was born on 1 January 1982 in Punjab Province.  He is a Sunni Muslim.  He speaks both Urdu and Punjabi.  His wife, whom he married in 2006, and two sons aged seven and four at the time of the Tribunal hearing, remain in Pakistan.  His third child, a daughter, died at about the age of six months in January 2013, while he was in Australia.  His father, one brother and one sister reside in Pakistan, while one brother, who is married, resides in Canada, and one married sister resides in the United Kingdom.  His mother passed away just before he departed for Australia. 

2. The Applicant arrived in Australia as the holder of a temporary business entry (short stay) visa granted on 23 October 2012 and valid to 22 November 2012.  He lodged his application for the protection visa on 26 June 2013.

3. In a statement submitted with his protection application, the Applicant claimed he could not return to Pakistan as he would continue to be an active member of Duwat-e-Islami, and as a result he and his family would be killed by radical Shias.

4. The Applicant claimed that he was a member of Duwat-e-Islami and had been for about 14 to 15 years. He claimed in Pakistan to have attended weekly “Ijtamah” and afterwards he would go out into the street and preach.

5. The Applicant’s further claims were as set out in the First Respondent’s written submissions and as set out in the Tribunal decision record:

   a)In 2010 he was shot by radical Shias while driving after leaving a meeting, and the other person in the car was killed.  The Applicant’s injuries required an operation and hospitalisation for four or five days, and although he gave a report to police and went to the police station to find out what was happening, he was not contacted further by the police.  He left Gujranwala in fear about 20 days after the shooting, and returned only five months later;

   b)in October 2012 he was robbed and a police report was made in relation to the incident;

   c)in November 2012 two men on a motorcycle started following him and then started shooting at him whilst he was walking home from the mosque.  The Applicant escaped to his house and was told by his neighbours that there were around six people outside his house shooting at it, and that he had been targeted because the shooters believed he had spoken out against Shia.  The shooting lasted for around 10 minutes.  The Applicant’s mother, who was inside the house at the time of the shooting, became unconscious during the incident and died.  She was buried on the same day.  A police report was made in relation to the incident but there were no arrests; 

   d)the Applicant’s daughter died shortly after his Australian visa expired, and the Applicant’s father warned him not to return home as he had been told that the radical Shias were still looking for him and keeping an eye on his house.

6. On 7 May 2014 the delegate refused the grant of the visa.  The delegate did not accept the Applicant’s claims as credible or genuine and was not satisfied the Applicant was an active member of the Duwat-e-Islami religious group or held a profile which would see him targeted by Shia extremists.

7. The Applicant lodged his application for review to the Tribunal on 21 May 2014.  Between that time and the conclusion of the Tribunal hearings on 29 October 2014, the Applicant was given many opportunities to place material and written argument before the Tribunal, in particular, as follows:

   i)on 27 May 2014 the Tribunal acknowledged receipt of the application and advised that:-

   “If you wish to provide material or written arguments for the Tribunal to consider you should do so as soon as possible.”

   ii)on 2 September 2014 the Tribunal invited the Applicant to appear before it at a hearing scheduled for 1 October 2014.  That invitation to hearing noted that:-

   “Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider.”

   iii)on 2 October 2014 the Tribunal invited the Applicant to appear at the then adjourned part-hearing scheduled for 9 October 2014.  The invitation again noted:-

   “Please use this form or attached additional information if you have any requests or any new information which you wish the Tribunal to consider.”

   iv)on 6 October 2014 the Applicant was advised that the hearing scheduled for 9 October 2014 could not proceed and that the adjourned hearing would now take place on 29 October 2014.  That correspondence again noted:-

   “Please use this form or attached additional information if you have any requests or any new information which you wish the Tribunal to consider.”

The Tribunal Hearing

1. The Applicant appeared before the Tribunal on both days of 1 October 2014 and 29 October 2014 to give evidence and present arguments.  The Applicant was aware at the time of those appearances and, indeed, throughout the time that had elapsed since his lodging of his application for review with the Tribunal, that the delegate had concluded on the then evidence placed before her, that the Applicant’s claims were not credible.  The delegate’s findings were as set out in the Tribunal decision record. 

2. The Tribunal set out its conclusions as to the Applicant’s credibility in paragraphs 59 to 70 inclusive of the decision record.  Under that heading, the Tribunal also noted that it had confirmed with the Applicant at both hearings that he understood the interpreter, as there was some confusion over whether the Applicant wanted a Punjabi or Urdu interpreter, and the Tribunal was told that the interpreter was fine and that she was a Pakistani/Urdu speaker, whom the Applicant understood. The interpreter confirmed that she understood the Applicant. 

3. The Tribunal found the Applicant’s evidence to be inconsistent, primarily around dates and times of specific events which the Tribunal considered to be significant to his claim, even allowing for the Applicant’s nervousness, stress at participating in the hearing, and lack of education.  The Tribunal also concluded in respect of the other evidence before it, that the Applicant had not been truthful in his evidence.

4. The concerns of the Tribunal were set out, in particular in paragraphs 65 to 69 inclusive of the decision record.  The Tribunal concluded that the Applicant was not truthful in his reasons for coming to Australia, which undermined his credibility as to other aspects of his evidence; “was not truthful in relation to the alleged attacks upon him which further undermined his credibility”; and after considering his entire evidence and for further reasons as discussed beyond paragraph 70 in the decision record, the Tribunal found the Applicant to be not a credible witness who had embellished aspects of his evidence to enhance his application for protection, in particular in relation to his membership of, and involvement with, Duwat-e-Islami.

5. The Tribunal gave little weight to the first information reports (FIR) as evidence that the Applicant was targeted by Shias, and was not satisfied that the Applicant had been truthful in relation to the alleged attacks. The inconsistencies in these, and his evidence otherwise, was put to the Applicant by the Tribunal.

6. In reaching the conclusion that the Applicant was not more than a mere member of Duwat-e-Islami the Tribunal considered the Applicant had displayed only a basic knowledge about the organisation, and when questioned further, he became evasive.  The Tribunal did not accept that any participation of the Applicant in the Duwat-e-Islami increased his profile such as to bring him to the adverse attention of any person or group.

7. In relation to the claimed February 2010 incident, the Tribunal did not accept the Applicant was with a person called Chand who was killed during the attack; that he was driving Chand’s car; or that he was in a car; or that he was with Chand at the time of the attack. The Tribunal did not accept that despite the Applicant telling the police, all these details were left out of the FIR. The Tribunal did accept, however, that the Applicant was shot by unknown assailants for unknown reasons in February 2010.  The Tribunal was not satisfied that the Applicant moved in 2010 for his safety, but instead considered it was a temporary relocation for business purposes. 

8. In response to the claimed November 2012 incident, the Tribunal was not satisfied that the Applicant was targeted by Shia extremists; or shot by Shia extremists; or that his house was shot at by a group of Shia extremists; and considered that if the Applicant was targeted by Shia extremists who followed him around all the time, there would be other incidents or attempts to harm him.  The Tribunal did not accept that Shia extremists were watching his house or following him around every day as it did not accept that he was of any interest to any Shia person or Shia extremist or radical Shia for any reason whatsoever (paragraph 87 of the Decision Record). 

9. Furthermore, the Tribunal considered the Applicant’s claims as to his being targeted by extremist Shia and Shia groups because he was a member of the Duwat-e-Islami who preached against Shia rituals, but found that his claims were not supported by the available independent country information that was before the Tribunal and canvassed with the Applicant. 

10. In relation to the harm of generalised sectarian violence in Pakistan, the Tribunal noted that independent country information supported the Applicant’s fear, but that he would not be a person different from the general population of Pakistan, and that any such harm did not involve systematic and discriminatory conduct.  In considering the issue under the complementary protection criterion the Tribunal found that any risk of harm was faced by the population generally, and not the Applicant personally, and in any event, was satisfied there was no substantial ground for believing there was a real risk he would face significant harm for that reason if returned to Pakistan. 

11. The Tribunal further did not accept the Applicant faced a real risk of significant harm in terms of accessing employment or livelihood, or his children’s future or any other ground. 

Consideration 

Ground 1

1. No jurisdictional error is revealed by this ground.  The Tribunal provided the Applicant with numerous opportunities to place material, and further materials, before it.  The Applicant appeared at a hearing before the delegate and two hearings before the Tribunal and was aware of the adverse credibility findings of the delegate prior to the commencement of the Tribunal hearings.  He could have provided further evidence to the Tribunal at any time during the process and indeed, could have requested to provide further materials immediately following the hearing.

Ground 2

1. Grounds 2 and 3 are linked.  As submitted by counsel for the First Respondent, it was for the Applicant to make his case to the Tribunal and the Tribunal did not have a duty to make inquiries in relation to the original documents.  If the Applicant had wished to tender original documents, it was a matter for him.  In any event, unlike the delegate, the Tribunal did not take issue with the content of the FIRs, saying in paragraph 91 of the Decision Record “The Tribunal acknowledges that the application was shot in 2010, he was robbed and there was a random shooting outside his home in 2012…” The Tribunal, however, placed little weight on the reports to substantiate the Applicant’s claims in relation to why the incidents had occurred. The Tribunal did not accept the incidents “were related or were anything more than random indiscriminate acts by unknown assailants.”[1]  Accordingly, the failure to provide the Tribunal with original documents had no bearing on the outcome of the Tribunal decision.

   [1] Refugee Review Tribunal Decision Record dated 27 February 2015 at [91].

Ground 3

1. No obvious inquiries presented themselves to the Tribunal on the Applicant’s evidence.  Although the Tribunal may obtain such information as it considers relevant, it does not have a general duty to undertake its own inquiries in addition to information provided to it by the Applicant (Minister for Immigration and Citizenship v SZIAI[2009] HCA 39; (2009) 259 ALR 429; (2009) 83 ALJR 1123; (2009) 111 ALD 15 at [1] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Applicant was required to put what matters he considered relevant before the Tribunal in support of his various claims. The Applicant has not provided any evidence to suggest that any inquiry by the Tribunal would have produced a useful result or, further, what information might have been elicited if the Tribunal had been in a position to undertake any inquiry. This ground cannot be made out.

Ground 4

1. Any errors in the interpretation of the matters as described by the Applicant would not have been material to the decision of the Tribunal in the sense that any such error, as alleged, was minor and nothing turned on the point.  In any event, as submitted by counsel for the First Respondent, it is not necessary or perhaps even possible to achieve a perfect interpretation.  What is required is that:-

   “The essential elements that were being conveyed by the appellant (applicant) were received by the Reviewer: SZRMQ at [78] to [80].”

   There is no evidence this did not occur.

Ground 5

1. It is not apparent the Tribunal misconstrued or failed to consider the Applicant’s claims.  On a fair reading of the Tribunal decision and as a whole, it is clear the Tribunal took the Applicant’s evidence and more general claim to be that whilst the Applicant was not the main person, he was driving the car and was a member of the party and feared harm on the basis of his membership and involvement. 

2. The Tribunal sets out its consideration of this matter at paragraph 35 of its decision record.  That is:-

   “The Tribunal asked why particularly are they targeting him and was told because he was always with the main person driving his car.  They always target the main people and that is why they are after him now.  The Tribunal asked whether he was a main person in this party and was told that Chand was the main person and he was driving his car.  He was a member of the party.  He is a member of Duwat-e-Islami.”

3. The decision of the Tribunal was neither illogical, nor unreasonable.  It was made on the basis of the evidence before it.  All of the integers of the claims put before it by the Applicant were considered by the Tribunal.  There is no jurisdictional error attending the decision and the application must be dismissed with costs following the event.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 27 November 2015