AGO15 v Minister for Immigration

[2015] FCCA 3311

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGO15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3311

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal improperly took irrelevant considerations into account – whether the Tribunal erred in making adverse credit findings against the applicant – whether the Tribunal failed to take relevant considerations into account – whether the decision of the Tribunal was reasonable – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24

Applicant: AGO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 104 of 2015

Judgment of: Judge Street

Hearing date: 10 December 2015

Date of Last Submission: 10 December 2015

Delivered at: Sydney

Delivered on: 10 December 2015

REPRESENTATION

Solicitor for the Applicant:

Ms S Hemachandra

Fourlion Legal Pty Ltd

Solicitor for the First Respondent:

Mr A Gerrard

Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 104 of 2015

AGO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 February 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Pakistan, albeit that he had been born in Kuwait. The applicant arrived in Australia on a student visa in June 2011 and did not apply for protection until November 2012.

2. The applicant’s claims as to a fear of persecution can be summarised as follows:

   • His parents are Pakistani citizens who have resided in Kuwait since 1981. He was born in Kuwait, but is a Pakistani citizen. He no longer has any right to reside in Kuwait. He has only visited Pakistan briefly as a child.

   • His mother is from Gujranwala, Punjab. His father is from Sheikhupura, Punjab.

   • The applicant's mother and father met in Kuwait and decided to marry. The applicant's older brothers did not approve of the marriage. The applicant's parents married in spite of this opposition, and as a result time the applicant and his siblings were regarded by his mother's older brothers as “dirty blood”. They have made threats against the applicant, his father and his siblings.

   • One of the applicant's uncles, Mohammad Youssef, is very involved with the Pakistan People's Party (the PPP). The applicant's mother is a member of the PPP, and the applicant thinks that he and his siblings are as well.

   • His mother has visited Pakistan on several occasions to see her elderly mother, the applicant's grandmother. She has experienced the following incidents during her visits to Pakistan:

   • In January 2011, the applicant's mother had just arrived in Pakistan and was driving from the airport with her brother when their car was shot at by unknown people.

   • In September 2012, her brother received a phone call from an unknown person who threatened to kill the applicant's mother unless a ransom was paid.

   • The applicant believes that the attacks and threats against his mother may have been carried out or ordered by her own family members, criminal groups or persons opposed to the PPP. His mother initially believed the attacks were by criminal groups or political opponents, however she now suspects her own family were behind the incidents.

   • In 2013 the applicant's mother was told by her brother that a property she owns in Pakistan was under threat of being taken over by squatters and he offered to buy it from her for 500,000 rupees. When the applicant's mother visited Pakistan she discovered that this was not the case and she was able to sell the property for 1950,000 rupees. She believes her brother lied to her to force her to sell the property to him at less than market value.

   • The applicant claims he will be targeted by criminal gangs in Pakistan as he will be perceived as a wealthy person given his family in Kuwait and Australia.

   • He claims he will be targeted by his own family members because of their disapproval of his father. He also claims they will target him in an attempt to extort money from his parents.

   • He claims he will be targeted by members of other political groups due to his family's association with the PPP.

   …

   • The applicant claims he faces a risk of harm in Karachi because as a young, urbanized male unable to access family connections or patronage networks in Pakistan, Mr Anjum would have extremely limited options in terms of relocation outside of Punjab;

   • Applicant would confront the difficulties of being a bachelor in terms of finding housing, finding employment and actually integrating in a new area where local residents are rightly suspicious of young men whose family background and tribal connections are unknown;

   • the evidence of Rehan Ahmed, the applicant's childhood friend, at interview with the Tribunal on 16th October 2014. Mr Ahmed described his awareness of the applicant's family problems in part because, unlike other Pakistani friends born in Kuwait, Mr Anjum didn't travel home to visit family;

   • it is not submitted that he cannot gain employment in Pakistan, rather that his particular characteristics, including his work history and study history in the West, lack of patronage networks, lack of familiarity with the lifestyle in Pakistan, put him at risk while he seeks work (though information provided herein refers to the extremely high rate of unemployment in Karachi). The act of exposing his background as a Gulf-stateborn, Australian-educated Punjabi, whilst seeking work and accommodation, puts him at risk of kidnapping for ransom and other serious harm;

   • The submission refers to the “Bhatta” mafia in Karachi, relevant to applicant's capacity to establish himself in this city; The submission refers to The Human Rights Commission report on Karachi, the evocatively titled “Unholy Alliances for Mayhem” published in October 2011, is littered with references to the collection of bhatta (extortion money), a practice common to every political party in Karachi, whether Pashtun, Mohajir, Sunni, Shia, secular or otherwise;

   • The submission refers to, and cites, other country information which it argues supports the claim that the applicant would be at risk of harm trying to establish himself in a new location in Pakistan.

   • The submission claims that the applicant is neither Mohajir or Pashtun and cannot seek the protection of either community and as a member of an ethnic minority in Karachi, would be particularly vulnerable.

   • It submits that the extreme level of generalised violence in Karachi renders relocation unreasonable and impractical and also submits that the applicant faces a real risk of serious harm to the applicant in Karachi;

   • It submits that the applicant fears harm in the form of physical threats against him; forced marriage; risk of kidnapping; prolonged psychological suffering and apprehension; - meets the definition of 'serious harm' as provided under s.36(2A). It goes on to submit that the applicant is directly at risk of serious harm and that he is at higher risk of kidnapping due to his lack of local knowledge as well as his profile as someone potentially considered wealthy, given his birthplace, travel history and work and employment history: all of which he would of necessity expose whilst seeking employment.

3. This is a case where the Tribunal made adverse credit findings in relation to the applicant.  It is clear from the transcript that was put into evidence that the applicant’s credit was a live issue.  The Tribunal found the applicant to be an unreliable witness in respect of all the applicant’s claims.  The Tribunal found part of the applicant’s claims had, in fact, been fabricated, and that part of the applicant’s claims had been concocted to support an application for a permanent visa to remain in Australia.  The Tribunal found the applicant was not a credible witness and found that the applicant had exaggerated and misrepresented his claims that his extended family would seek to harm him in any way. 

4. The grounds of the amended application are as follows: 

   The Tribunal made a jurisdictional error in determining the applicant did not meet the criteria to be granted a Protection (Class XA) visa under s65 of the Migration Act.

   1. Taking into account irrelevant considerations

   Particulars

   a) The Applicant's ability to settle in Australia mean that he would be able to easily settle in Pakistan

   b) Applicant's mother's travels to Pakistan [93]

   c) The length of time that has passed between the time the applicant's parents got married and now and finding that there was a remote possibility of harm due to the time that has passed [95] [101] [103]

   d) Applicant's mother was not seriously harmed when she travelled to Pakistan [109]

   e) Honour killings were of a husband and wife [39]

   f) The applicant's family has not suffered serious or significant harm for the reasons which the Applicant claims he fears [95]

   2. Failing to take into account relevant considerations

   Particulars

   a) Husbands and wives were subjected to honour killing shortly after marriage, prior to children being born

   b) Children and family members who supported love marriages were subjected to honour killing

   c) Killings occur in Pakistan regularly due to land disputes

   d) The applicant and his family had not suffered harm at the hands of his mother's elder brothers because of the limited time spent in Pakistan and the fact that most of the time they hid from the applicant's mother's elder brothers when they travelled to Pakistan

   e) The applicant's mother suffered harm on each occasion her elder brothers were aware of her returning to Pakistan in 2007, 2011 and 2012

   f) That when considering the whole history of the relationship between the applicant's mother and her elder brothers, it is too much of a coincidence that a random shooting and a random ransom was made on the applicant's mother's life particularly because these incidents occurred shortly after the applicant's mother recommenced a relationship with her elder brothers

   g) If the applicant and his family were in Pakistan that they would have been subjected to honour killing or at the very least a very real threat of it

   h) The applicant and family members travelled to Pakistan in limited circumstances out of necessity

   i) The threat made by the applicant's mother's elder brother in 2014 to kill the applicant's family if they returned to Pakistan and finding that these were low level residual familial rejection of the applicant's mother's marriage [101]

   j) The violence suffered by the applicant's mother when she returned to Pakistan in 2007 at the hand of her elder brothers

   k) The reason why the applicant's family members (other than his mother) did not suffer violence when they returned to Pakistan

   l) The difficulties the applicant would face in adjusting to life in Pakistan having lived his whole life in Kuwait

   m) Moving from Kuwait to Australia being easier than moving from Australia to Pakistan

   3. The Decision was unreasonable in all of the circumstances

   a) Highly significant factors including:

   i. the fact that the Applicant's family or family members only travelled to Pakistan when it was absolutely necessary to travel;

   ii. when the applicant's mother travelled, she was subjected to violence and was sentenced to death by her elder brothers and imprisoned in a room, which she escaped with the help of one of her brothers;

   iii. the applicant's siblings only travelled to Pakistan during the Gulf war and in 1993 and 1996 due to visa issues;

   iv. the applicant only travelled in 1993 and 1996 due to visa issues;

   v. when the applicant's mother and father have travelled to Pakistan, they almost always hid and stayed away from the applicant's mother’s elder brothers;

   vi. applicant's mother was beaten and imprisoned in 2007, shot at in 2011 and a ransom call was made threatening her life in 2012 and these incidents only occurred when her elder brothers had knowledge of her return to Pakistan,

   were not given sufficient weight and the Decision Maker unreasonably found that because the applicant's mother was not harmed during her visits to Pakistan and because she continued to travel to Pakistan there was only a remote possibility of harm to the applicant

   b) The Decision Maker unreasonably did not take into account the precautions taken by the applicant's mother to ensure that her elder brothers did not know of her travels to Pakistan and did not know of her whereabouts when she was in Pakistan and each time they were aware of her whereabouts she was subjected to harm.

   c) The Decision Maker could not have found with any reasonable confidence that the attempt to shoot and kill his mother in 2011 and the ransom threat on his mother’s life in 2012 were random acts and as such, ought to have proceeded to assess the claim on the basis that these two incidents were probably caused by her elder brothers.

   d) finding that the applicant would be returning to Pakistan as a Pakistani national who is familiar with the language and the culture of Pakistan [116]

   e) Finding that the applicant could easily relocate from Australia to Pakistan and if he did not feel safe in one particular city he would easily be able to move to another part of Pakistan.

5. In addition to the transcript that was tendered in evidence, the applicant also sought to rely upon a fresh affidavit in essence setting out afresh the applicant’s claims and argument.  The affidavit was effectively a fresh statement that was not before the Tribunal.  It was in these circumstances that the Court confined the affidavit in its admissibility to a matter of argument only except to the extent that it annexed documents that were before the Tribunal or documents that were referred to by the Tribunal. 

6. In principle, it is not appropriate for applicants to put on affidavits restating material that was before the Tribunal, because the nature of the hearing in this Court is one in which the Court had jurisdiction to determine whether there is a jurisdictional error by the Tribunal or a relevant denial of procedural fairness.  Evidence may be admissible on issues relating to the denial of procedural fairness, but a restatement of claims by the applicant is not a matter that should find its way into an affidavit in support of an application of this kind. 

7. I note the applicant appeared before the Tribunal on 16 October 2014 to give evidence and present arguments, and that other witnesses were called, and that the hearing was conducted with the assistance of an interpreter, and that the applicant was represented by his migration agent.  I also note that at the beginning of the hearing before the Tribunal, the applicant agreed that the delegate’s decision was an accurate and comprehensive summary of his claims. 

8. Prior to the hearing, the Tribunal received submissions dated 9 October 2012 referred to in para.12 of the Tribunal’s reasons.  After the hearing, the Tribunal received further submissions dated 28 October 2014 identified in para.35 of the Tribunal’s reasons. 

9. Insofar as ground 1 identifies reasoning of the Tribunal, none of the matters identified are ones that amount to an irrelevant consideration under the Migration Act1958 in terms of the requirements of Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at [39]-[40]. Ground 1 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. Those adverse findings by the Tribunal were the subject of a thorough and careful analysis that identified a proper basis for the adverse credit findings that were open on the material, and the adverse findings cannot be said to lack an evident and intelligible justification. Ground 1 fails to make out any jurisdictional error.

10. In relation to ground 2, it is clear from the Tribunal’s reasons and identification of the applicant’s claims relevantly in para.12 that the Tribunal was alive to the claim in relation to alleged honour killings, and that it was the subject of consideration and adverse findings by the Tribunal.  It is also clear that the Tribunal took into account the incident involving the applicant’s mother and her brothers, and the adverse findings in that regard cannot be said to lack an evident and intelligible justification and were open on the material. 

11. It is also clear that the Tribunal took into account the alleged threat in respect of the applicant’s mother and ground 2 is, again, in substance, an impermissible challenge to the adverse findings of credit by the Tribunal.  This is not a matter where the Tribunal has failed to take into account a relevant consideration or failed to address the claims advanced by the applicant.  Ground 2 fails to make out any jurisdictional error. 

12. Ground 3 is, again, in substance, an impermissible challenge to the adverse finding of the Tribunal.  It does not identify any jurisdictional error.  For reasons given, the adverse findings by the Tribunal cannot be said to be unreasonable and were open on the evidence before the Tribunal.  Ground 3 fails to make out any jurisdictional error. 

13. In relation to ground 4, the Tribunal was not required to give a running commentary in relation to the assessment of the applicant’s credit nor that of a witness.  It is clear that the issue of credibility in relation to the applicant’s claims was a live issue from the content of the transcript that was tendered.  Ground 4 fails to make out any jurisdictional error. 

14. The amended application fails to disclose any jurisdictional error.  The amended application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 December 2015