AHX15 v Minister for Immigration

[2019] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHX15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 87

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal misunderstood or misconstrued part of applicant’s claim – whether Tribunal failed to exercise jurisdiction to conduct a review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) & (aa).

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 219 ALR 27

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Applicant: AHX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 57 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 June 2018

Date of Last Submission: 4 June 2018

Delivered at: Adelaide

Delivered on: 17 January 2019

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Esser Legal

Counsel for the Respondents: Mr R Prince

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 57 of 2017

AHX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 January 2017.  That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa (‘the visa’).

2. The application to this Court was filed within time and originally raised a single ground alleging that the Tribunal asked itself the wrong question as to whether the applicant’s claimed fear of persecution was well-founded and, in the alternative, that the decision was unreasonable.  At the hearing before me, the applicant was represented by counsel, and an application was made to amend the ground of review.  I granted the application and the matter proceeded on the following amended ground:

   “That the Tribunal failed to consider a claim or evidence, in the lawfully required sense, being that the applicant is owed complementary protection because he may be exposed to harm by reason of landmines.”

3. The background to this matter is not greatly in dispute, and for that reason, I will paraphrase the helpful summary in the first respondent’s outline of submissions.

Background and Tribunal findings

1. The applicant is of Pashtun ethnicity.  He is a member of the Bangash tribe and a Shia Muslim.  He was born in the Parachinar region of Pakistan.  He arrived in Australia on 22 July 2012 as an unauthorised maritime arrival.

2. The applicant lodged an application for the visa on 15 April 2013.  A delegate of the Minister refused to grant the visa to him on 26 July 2013.  The applicant sought review of the delegate’s decision in the Refugee Review Tribunal (‘the RRT’).  The RRT affirmed the delegate’s decision on 25 February 2015.  The applicant sought judicial review of the RRT’s decision and that application was dismissed on 15 May 2015.  The applicant then appealed to the Federal Court, which remitted the matter back to the Tribunal for consideration.

3. Once it was remitted for reconsideration by the Tribunal, the applicant appeared before the Tribunal on 22 November 2016.  On 13 January 2017, the Tribunal affirmed the delegate’s decision to refuse the visa application.

4. The basis of the applicant’s claims to fear harm at the hands of the Taliban or other extremist groups is, with respect to:

   a)His religious beliefs as a Shia Muslim;

   b)His ethnicity as a Bangash Pashtun;

   c)His imputed political opinion as a result of his religion, ethnicity and/or his claimed regular travel to the Afghani border;

   d)His extended presence in Australia, being a non-Muslim country; and

   e)His membership of a particular social group as a result of the above factors.

5. The applicant also claims to be in fear of his uncle in Pakistan because of a breakdown in his relationship with him.  Tragically for the applicant, in 2010, he was injured after stepping on a landmine.  That injury resulted in his foot being amputated.  He claimed that he did not receive appropriate medical care as a result of that injury and that this was due to his religious beliefs.  He fears that such discrimination will continue into the future. 

6. The Tribunal considered the applicant’s claims as set out in his protection visa application; his Departmental interview; submissions from his representatives submitted prior to both the first and second Tribunal hearings; submissions submitted by his representatives after the second Tribunal hearing; and his statement of claims.  It also took into account country information provided to the RRT, as well as more recent country information. 

7. The Tribunal accepted that the applicant was a Shia Muslim and a member of the Bangash tribe.  It accepted that there had been tension over a number of years between Shia and Sunni Muslims in the area of Pakistan in which he resided.  It accepted that he had suffered the injury to his foot and the cause for that.  The Tribunal was concerned about inconsistencies and what it regarded as exaggerations in his evidence and ultimately concluded that he was not a witness of truth.  It did not accept a significant number of his claims.  In particular, it did not accept that he had been suspected of having connections with US and NATO forces. 

8. It did not accept that his landmine injury was caused as a result of a targeted attack by either Sunni Muslims, the Haqqani network, or the Taliban.  It did not accept that he had been subjected to threats by any of those groups or that his family had been threatened by those groups after his departure from Pakistan.  It did not accept that he had been harassed by the Pakistani police on the basis of being a Shia Muslim.  Further, the Tribunal did not accept that his friends had been targeted by Sunni Muslims and that, as a result, he was placed at a similar risk of harm.  The Tribunal did not accept that there was any relationship breakdown with his uncle. 

9. The Tribunal did not accept that he would not have the support of any family members if he were to be required to re-settle in Pakistan.  It found that he would be able to work notwithstanding his disability and relied on the fact that he had been able to run his own business after being injured.  The Tribunal rejected his claims that because of his religion, ethnicity, imputed political opinion, and/or particular social group that he would face persecution now or in the future.  It did not accept that he would face harm on return to Pakistan because of the fact that he had spent time in Australia.  The Tribunal did not accept that the applicant had failed to receive proper medical assistance on the basis of being a Shia Muslim. 

10. On the basis of country information, the Tribunal found that there was no specific discrimination against Shias in relation to healthcare, and, for that reason, concluded that the applicant would not be denied healthcare or be given a lesser standard of healthcare for his leg injury in the future.  The Tribunal also rejected the applicant’s claim that he had been unfairly interrogated by Pakistani authorities at a transit checkpoint because of the fact that he was an amputee.

11. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that he was entitled to protection either on the basis of being a refugee (s.36(2)(a)) or as a result of Australia’s complementary protection obligations (s.36(2)(aa)) under the Migration Act 1958 (Cth) (‘the Act’). The Tribunal affirmed the decision of the delegate.

Submissions

1. Counsel for the applicant acknowledged that this application was made with a narrow focus.  His written outline succinctly made the following contentions:

   a)Whilst the Tribunal accepted that the applicant had been injured after he stepped on a landmine in July 2010, it went on to find that it did not accept that this was any indication that he would face a real risk of similar random indiscriminate harm because there had been a changed security situation in Parachinar;

   b)That reasoning was difficult to follow.  It is a notorious fact that landmines are placed in the ground during periods of conflict and that not all of them will be exploded during the course of the conflict itself.  As a result, many landmines may remain active in the ground after the cessation of hostilities.  For that reason, it follows that the changed security situation in the region could not affect the risks associated with injury or death from landmines;

   c)As a result, it can be inferred that the Tribunal must have misunderstood the claim or evidence or failed to consider the applicant’s claim in the lawfully required sense.  The reasoning of the Tribunal demonstrates that something went wrong in the process of its reasoning in its response to the evidence.  It is not possible to indicate precisely the way in which that occurred.  It was unrealistic to suggest that a Tribunal member would not have appreciated that landmines remain in the ground after hostilities cease.  As a result, it follows that the Tribunal failed to exercise the jurisdiction that it embarked upon, and its decision is accordingly affected by jurisdictional error.

2. Having accepted that the applicant had been severely injured when he stepped on a landmine, the Tribunal’s finding that the applicant did not face a risk of indiscriminate harm due to the presence of landmines suggested that it misunderstood something about the nature of the country information, or the change in the security situation in Parachinar, or the threat posed by landmines.  That, in turn, suggests the Tribunal misunderstood how those issues impacted upon the speculative task of assessing whether there was a real risk to the applicant in the future. 

3. The improved security situation to which the Tribunal referred was set out in the country information on which it relied.  That country information made it clear that the improved security situation referred to a reduction in the risk presented by human actors, namely, what people were or were not doing.  It did not address the risk posed by landmines which might have been placed in the ground where they would continue to present a risk until detonated or removed.  None of the country information addressed the ongoing risk posed by landmines or contained any reference to whether they had been removed. 

4. The nature of the risk posed by landmines was different to that posed by human actors, and that was a matter that should have been apparent to the Tribunal.  As a result, the Tribunal have misunderstood or misconstrued an aspect of the claim and in the sense identified in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2),[1] it did not deal with the claim advanced by the applicant and had failed to properly exercise jurisdiction.

   [1] (2004) 219 ALR 27.

5. Counsel for the applicant was careful to distinguish the basis of the application from one based on irrationality, illogicality or unreasonableness.  Finally, whilst acknowledging that significant findings of credit were made against the applicant and that the most obviously prominent of his claims were dismissed, counsel submitted that the fact that the risk posed by landmines was one aspect only of the applicant’s claims did not mean that it could not be said to have been an insignificant or peripheral claim.  Accordingly, a failure to address it would amount to a jurisdictional error.

6. For the first respondent, Mr Prince submitted that the decision of the Tribunal was thorough and that the findings were responsive to and dispositive of the applicant’s claims.

7. He submitted that in addition to the findings that the applicant did not face a real risk of similar indiscriminate violence, the Tribunal made the broader finding that the applicant did not face a real risk because of sectarian, militant or generalised violence.  He submitted that the findings of the Tribunal were open to it and as such the findings were not illogical, irrational or unreasonable in the sense identified in SZMDS.[2]

   [2]     Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Consideration

1. The applicant relies on the decision in NABE to establish jurisdictional error on the basis of a constructive failure to exercise jurisdiction as a result of a failure to consider a claim raised by the applicant, namely that he might be exposed to a risk of harm by reason of landmines.

2. The decision in NABE followed the decision of the High Court in PlaintiffS157/2002 v Commonwealth.[3]  That decision, which examined the ambit of privative clause decisions, held inter alia, that a valid decision of the relevant kind made under the Act could only be a decision in which there was no failure to exercise jurisdiction or one which did not exceed jurisdiction conferred under the Act. A decision involving jurisdictional error might be, “regarded, in law, as no decision at all.”[4]

   [3] (2003) 211 CLR 476.

   [4] Ibid at para [76].

3. Where jurisdictional error is present, the decision is not one made under the Act and accordingly cannot be a privative clause decision as defined by the Act.

4. In NABE, the Court applied the decision of the High Court in the Minister for Immigration and Multicultural Affairs v Bhardwaj[5] to the effect that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision, which involves making:

   “a decision on the application and any documents properly submitted by applicant, with, as part of, or relevant to it.  To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.”[6]

   [5] (2002) 209 CLR 597.

   [6] Ibid at para[163].

5. The Court in NABE applied the decision in Bhardwaj in the context of considering the extent to which a factual error on the part of the Tribunal may amount to a failure to:

   “carry out its review function or otherwise amounts to a  failure of jurisdiction amenable to the writ of certiorari and/or mandamus and prohibition …”[7]

   [7]     NABE, op cit, at para [52].

6. A mere factual error will not amount to a jurisdictional error.  As the Court in NABE observed:

   “If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified: …  An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact …”[8]

   [8]     NABE, op cit, at para [53].

7. Acknowledging that there was no precise limit on the scope of factual errors which might give rise to jurisdictional error, the Court in NABE held, applying Dranichnikov v Minister for Immigration & Multicultural Affairs,[9] that it was clearly demonstrated that:

   “Where the Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. … Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.”[10]

   [9] (2003) 197 ALR 389.

   [10]    NABE, op cit, at para [55].

8. The Court in NABE held that a Tribunal was not obliged to deal with claims that are not articulated and do not clearly arise from the materials before it.[11]

   [11]    NABE, op cit, at para [60].

9. The Court went on to make the following observation:

   “Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made.  The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa.”

10. The Court continued later in the judgment to say:

    “It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.  The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances.  Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.  It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”.[12]

    [12]    NABE, op cit, at para [63], citations omitted.

11. The above requires a consideration of the claims made by the applicant.  Was the claim to be at risk of significant harm from landmines in the future, an articulated claim or one which clearly arose on the materials before it?  In terms of the claims articulated by the applicant, it is clear, and was accepted by the Tribunal, that he had sustained a significant injury resulting in the loss of a foot when he stepped on a landmine near his home.[13]

    [13]    Court Book, ‘CB’, p 369 at para [36] and [78].

12. It is beyond question that the applicant relied on the fact that he had been injured by a landmine to illustrate the danger he had faced at that time in Pakistan.  It does not follow that he was making a claim to be at risk of similar indiscriminate harm in the future.  Indeed, he had advanced his claim on the basis that the landmine injury was not an example of indiscriminate harm but the result of a targeted attack.  There does not appear to have been any claim articulated by the applicant as to the prevalence of landmines in his region of Pakistan or the country generally, either at the time of or subsequent to his injury and as a consequence, the ongoing real risk faced by the applicant because of landmines.  No reference was made to that matter in:

    a)the applicant’s entry interview;[14]

    b)his statement of claims[15] (which was reproduced in its entirety in the decision record of the Tribunal);

    c)the written submission prepared by his agent prior to the delegates decision;[16]

    d)the country information submitted on his behalf prior to the RRT hearing;[17]

    e)the written submissions made by his agent after the RRT hearing;[18]

    f)the written submissions made on his behalf by his agent to the Tribunal prior to the hearing in this matter;[19] or

    g)by the agent in written submissions following the subject Tribunal hearing.[20]

    [14]    CB pp 16 - 33.

    [15]    CB pp 88 - 94.

    [16]    CB pp 101 - 102.

    [17]    CB pp 146 - 159.

    [18]    CB pp 160 - 165.

    [19]    CB pp 245 - 297.

    [20]    CB pp 340 – 344.

13. The Decision Record does not suggest that the matter was raised by the applicant during hearing, and the transcript of the proceedings was not relied on by the applicant in the proceedings before me.  I am not satisfied that the applicant articulated a claim before the Tribunal on the basis asserted.  For that reason it cannot be said that the Tribunal misunderstood or misconstrued a claim advanced by the applicant in reaching its decision.  I am also not satisfied that it has been demonstrated that the Tribunal misunderstood or misconstrued a claim clearly raised on the evidence before it.  The country information does not appear to have dealt with the latent ongoing threat at large posed by landmines in Pakistan. 

1. In the absence of such information there was no basis for the Tribunal to conclude that there was a significant risk of harm to the applicant in the foreseeable future for that reason.  Indeed, the reference to whether the applicant faced a real risk of a similar random indiscriminate incident, such as stepping on a landmine, appears to have been mentioned for the first time by the Tribunal when dealing with the question of the risk of generalised violence in the context of considering the claim to complementary protection.

   “78.While the Tribunal accepts that there may continue to be some sectarian, militant and generalised violence in the FATA generally, based upon all the country information before it, and for the reasons above, the Tribunal does not accept that the applicant faces a real risk of significant harm because of sectarian, militant or generalised violence including in his home area in Upper Kurram.  Although the Tribunal accepts the applicant was injured when he stepped on a land mine in July 2010, it does not accept that this indicates the applicant faces a real risk of such similar random indiscriminate incident, particularly given the change in the security situation in Parachinar since this incident occurred many years ago, as discussed above. …”[21]

   [21]    CB pp 369 – 370.

2. The Tribunal was entitled to rely on and give such weight to country information as it saw fit.  That country information suggested that the security situation in Parachinar had changed to be significantly less volatile.  That finding was open to the Tribunal.  There was no evidence to the contrary to suggest that the applicant faced a real risk of significant harm at the time of the decision or in the reasonably foreseeable future by reason of the threat posed by landmines.  I am not satisfied that the applicant has demonstrated there has been any jurisdictional error on the part of the Tribunal in relation to this matter.

3. I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 17 January 2019