Aij17 v Minister for Immigration

[2019] FCCA 2932

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIJ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2932

Catchwords:
MIGRATION – Pakistan national – religious teacher - Nawha Khwan – whether the Tribunal failed to apply the correct or most recent country information – changing circumstances in Pakistan – dismissed.

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: AIJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 158 of 2017

Judgment of: Judge McNab

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Melbourne

Delivered on: 9 October 2019

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Mr Hunter

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application filed 24 January 2017 be dismissed and such order becomes operative from the date written Reasons are published.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 158 of 2017

AIJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 24 January 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 10 January 2017. That decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent not to grant him a Protection (Class XA) (Subclass 866) visa (‘the Visa’).

2. The applicant’s one ground of review is that:

   The decision of the Tribunal was affected by jurisdictional error and should be quashed.

3. On 2 August 2017, Registrar Ryan made orders permitting the applicant to file and serve any amended application, affidavits, supplementary Court Books and written submissions 28 days before the final hearing. The applicant did not file any documents as allowed by Registrar Ryan.

4. The applicant did appoint lawyers to represent him, but they withdrew as lawyers by way of a notice of intention to withdraw as a lawyer filed on 8 October 2019.

Background

1. The applicant is a citizen of Pakistan. He arrived in Australia as a holder of a student visa on 16 February 2008. His arrival on a student visa was noted at [20] of the Tribunal’s decision record as being based on the applicant’s departmental decision record which was supplied by the applicant.

2. The applicant was granted a further student visa in October 2010, and a subclass 485 temporary residence visa in May 2012. He returned to Pakistan from 22 August 2013 to 19 September 2013.

3. On 11 November 2013, the applicant applied for the Visa. The applicant’s claims were set out in a lengthy statement at pages 105 to 113 of the Court Book, with these claims being attached to his application for the Visa.

4. In summary, the applicant claimed that he feared harm from the Taliban and other Sunni extremists, particularly because he was a Nawha Khwan (a reciter of religious material), a teacher who taught female students, and a Shia from Parachinar.

5. On 30 January 2015, the Delegate refused to grant the applicant the Visa.

The Tribunal’s proceedings

1. On 4 March 2015, the applicant applied to the Tribunal to review the Delegate’s decision. A copy of the Delegate’s decision was attached to this application.

2. On 3 August 2016, the applicant was invited to attend a hearing by way of a letter.

3. On 30 August 2016, the applicant provided detailed written submissions, prepared with the assistance of legal practitioners, and a lengthy statutory declaration. Also included were numerous links to YouTube videos of his recitals, pursuant to his role as a Nawha Khwan.

4. On 6 September 2016, the applicant and his representative attended the hearing before the Tribunal.

5. On 19 September 2016, the applicant provided further documents in support of his application, including letters from Shia community groups in Australia supporting the applicant’s protection claims and additional links to YouTube videos.

The Tribunal’s decision

1. On 10 January 2017, the Tribunal affirmed the decision under review.

2. The applicant’s claims before the Tribunal were quite detailed and reasonably numerous, and in substance, the claims further developed the matters raised in his initial application.

3. Those grounds of the claim included the applicant’s profile (as considered at [31] and [32] of the Tribunal’s decision record), the applicant’s role as a teacher (particularly, as a teacher who was well-known for teaching female students) and as a social worker.

4. The Tribunal also dealt with the claims that the applicant had achieved prominence in Pakistan as a Nawha Khwan. At [105] to [107] of the Tribunal’s decision record, the Tribunal made specific reference to the evidence provided by the applicant in relation to his activities, and referred to the YouTube videos referred to by the applicant.

5. The Tribunal also considered the applicant’s claims in relation to threats from the Taliban in 2006 and 2007 and again upon his return in 2013, the claim that his father received threatening phone calls, the applicant’s activities with his uncle’s bookshop in Pakistan, and his future risk of harm.

6. The Tribunal has comprehensively set out the applicant’s claims, and dealt with each of the claims in a clear and coherent way. The Tribunal did not accept that the applicant had any particular profile in Pakistan, whether as a teacher or as a social worker, as a result of family status, or his role as a Nawha Khwan.

7. At [49] to [59] of the Tribunal’s decision record, the Tribunal accepted that the applicant may have received approximately seven telephone threats between 2006 and 2007, but noted that the applicant had not been harmed, despite continuing his teaching and Shia recitations.

Consideration

1. The Tribunal had before it very comprehensive claims, both made before the Delegate and those made subsequently to the Tribunal through his representative. The Tribunal has dealt with each of the claims made. There is no error apparent in the way that the Tribunal has dealt with the consideration of the claims.

2. The applicant appeared unrepresented before me but had the assistance of an interpreter. When asked what errors he was relying upon in support of his application, the applicant stated that the principal error of the Tribunal was that the Tribunal found that the conditions in Pakistan had improved, but that this is not the case.

3. He said that the situation in Pakistan is very dynamic, and the threat level varies. He also subsequently stated that he thought that the country information relied upon by the Tribunal was out-of-date. I note from the references in the Tribunal’s decision record that the country information referred to, in particular the DFAT thematic reports, were published in January 2016. Given that the hearing was in September 2016, it is not apparent that the material was out of date.

4. In any case, I refer to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, a decision of the Full Court of the Federal Court.[1] At [11], their Honours stated:

   By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

   [1] Gray, Tamberlin and Lander JJ.

5. In this case, the Tribunal comprehensively considered the claims of the applicant. It also considered the country information and the applicant’s claims as against that information. There is no error in the approach taken by the Tribunal, and no jurisdictional error is apparent.

Conclusion

1. In those circumstances, the Court must dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 15 October 2019