Aij17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1617
•14 December 2021
FEDERAL COURT OF AUSTRALIA
AIJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1617
Appeal from: AIJ17 v Minister for Immigration and Anor [2019] FCCA 2932 File number(s): VID 1197 of 2019 Judgment of: DAVIES J Date of judgment: 14 December 2021 Date of publication of reasons: 21 December 2021 Catchwords: MIGRATION – appeal against decision of the Federal Circuit Court of Australia (FCC) dismissing application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision not to grant a protection visa – where appellant was a teacher in Pakistan teaching girls and supporting co-education – whether the Tribunal misapplied the chance of serious harm/risk test – whether the Tribunal expressly and directly engaged with the appellant’s personal circumstances or as part of a subset of a larger group (teachers) – no error in approach – appeal dismissed
APPEALS – application for leave to file an amended notice of appeal – new grounds of appeal do not have sufficient merit to warrant a grant of leave – application for leave refused
Legislation: Migration Act 1958 (Cth) s 65 Cases cited: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 14 December 2021 Counsel for the Appellant: Mr P Jeffreys Solicitor for the Appellant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Ms K Hooper Solicitor for First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
VID 1197 of 209 BETWEEN: AIJ17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DAVIES J
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to amend the notice of appeal be refused.
2.The appeal be dismissed.
3.The appellant is to pay the costs of the first respondent, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The appellant has appealed the decision of the Federal Circuit Court of Australia (FCC) (as it then was) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).
The appellant is a citizen of Pakistan. He first arrived in Australia in 2008 on a student visa and in 2013 applied for a protection visa. An aspect of the appellant’s claims was that he would be targeted by the Taliban if he returned to Pakistan, because he had a particular profile as a teacher who supported co-education and had taught female students and in 2006 and 2007 had received several threats from the Taliban that he would be killed or kidnapped if he did not stop teaching female students. The Tribunal accepted at [59] that:
(a)the appellant had worked as a teacher from 1998 and had taught female students;
(b)as a result of the appellant’s teaching roles, the appellant was known in the community as a teacher, but not that the appellant had a profile over and above other local teachers, as the appellant had claimed, or that the appellant stood out in any particular way because of his support for female education;
(c)in 2006 and 2007 the appellant had received approximately seven telephone threats of kidnapping or death, finding that claim “relatively consistent” with other evidence indicating that teachers at the time had been targeted by the Taliban and other reports of the Taliban targeting girls’ schools in the region in which he taught; and
(d)that the telephone threats and general worsening security situation in his region led the appellant to take precautions including reducing school hours, changing schools and taking different forms of transport.
However, the Tribunal noted that the appellant was not harmed at any time despite having received those telephone threats over the course of almost two years and despite continuing his teaching. The Tribunal also rejected the appellant’s claim about threats he received following his return to his home region in August/September 2013.
The Tribunal considered the future risk of harm to the appellant based on the past threats made to him and concluded that the risk was remote. Under the heading “Teacher and ‘social worker’”, the Tribunal separately considered the risk of harm to the appellant if he returned to Pakistan and worked as a teacher, including as a teacher or tutor to girls. At [124], the Tribunal accepted country information that indicating that teachers and those involved in or supportive of girls’ education had been targeted in Pakistan, including in the appellant’s home region, in the past. At [125]–[126] the Tribunal stated:
While the tribunal accepts that attacks against teachers in the [appellant’s] home area have occurred in the past, and has accepted that he may have received threats in 2006‑2007…current country information does not indicate that all teachers in Kurram Agency or Parachinar, including those teaching girls, face a real chance of serious harm. While the submissions provide country information related to the targeting of teachers throughout Pakistan, none of the recent reports refer to incidents that occurred in Kurram Agency…
While noting the information contained in submissions, the [t]ribunal finds that the evidence before it indicates that the [appellant] faces no more than a remote chance of serious harm as a teacher and due to his actual or imputed political opinion resulting from that profile, including as someone who supports girls’ and western education as well as co-education… The [t]ribunal also finds on the evidence that the [appellant] does not face a real risk of significant harm as a teacher or any actual or perceived views he holds resulting from that profile.
The appellant applied for judicial review of that decision. He represented himself and had one ground only, namely that the decision of the Tribunal was affected by jurisdictional error and should be quashed. The FCC decision records that the appellant, when asked what errors he was relying upon in support of his application, stated that the principle error of the Tribunal was that the Tribunal found that the conditions in Pakistan had improved, but that this was not the case (at [23]). The FCC found no error, holding that the Tribunal had comprehensively considered the claims of the appellant, including the country information and the appellant’s claims as against that information.
The appellant then filed an appeal against the FCC decision in this Court. Two grounds were raised: the first ground was that the FCC erred in not quashing the decision of the Tribunal because the decision of the Tribunal was affected by jurisdictional error in failing to consider a relevant consideration, particularised as not considering whether the improvements in the situation in Parachinar and Pakistan generally were stable and would continue; the second ground was that the Tribunal fell into jurisdictional error in that it was unreasonable.
Subsequent to the filing of that notice of appeal, the appellant has obtained legal representation and a draft proposed amended notice of appeal has been filed on his behalf. The draft amended notice of appeal seeks to raise three grounds. Each of the grounds is directed to the finding of the Tribunal at [125] extracted above and, in particular, is directed at the first sentence of that paragraph. It is sought to be argued that the Tribunal misapplied the chance of serious harm/risk of significant harm test in reaching that conclusion by evaluating a risk of harm to a broader group - being teachers generally - and used that evaluation to downplay the risk of harm to a subset of that group - teachers of female students - and not centring on the circumstances of a person in the appellant’s particular circumstances that he had been well‑known as a teacher, that he had taught female students and that he had received several threats as a result. It is also sought to be argued that the Tribunal engaged in irrational reasoning in using country information about all teachers generally to disregard the chance of serious harm/risk of significant harm to the appellant, given the Tribunal’s findings about the appellant’s background and circumstances. It was submitted that the Tribunal’s conclusion that the appellant did not face a real chance of serious harm did not follow from the premise that country information did not indicate that all teachers in the region face a real chance of serious harm.
Leave to advance the new grounds on appeal should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588, [46]–[48]. In the present case, in view of the fact that the appellant represented himself before the FCC, it seems to me that the pertinent consideration in respect of whether it is expedient in the interests of justice to grant leave is whether the proposed amended grounds have sufficient merit to warrant the grant of leave to rely on the new grounds. For the reasons that follow, I am unable to accept the submissions advanced on behalf of the appellant in support of the proposed new grounds and do not consider that the proposed new grounds have sufficient merit to warrant a grant of leave.
The central argument advanced on behalf of the appellant in support of the proposed new grounds was that it was not the appellant’s claim that all teachers in the appellant’s home region were subject to a real chance of serious harm; the claim was that a teacher in his position, with his history, would be subject to a real chance of serious harm. Paragraph [125] must be read in context, however and read fairly, in context, the Tribunal dealt with the particular circumstances of the appellant in addressing the risk of future harm:
(a)the Tribunal addressed and found that risk of harm to the appellant based on the threats made to him in 2006 and 2007 was remote;
(b)the Tribunal addressed and found that the appellant had no profile over and above that of teachers in his local area generally;
(c)the Tribunal accepted that there was a real chance that the appellant would work as a teacher if he returned to Pakistan, including as a teacher or tutor to girls; and
(d)the Tribunal addressed whether current country information indicated that teachers “including those teaching girls” were being targeted and found that it did not.
By these considerations, the Tribunal expressly and directly engaged with the appellant’s circumstances in assessing whether the appellant faces a real chance of serious harm or a real risk of significant harm if he returns to Pakistan. The arguments advanced on behalf of the appellant fail to pay sufficient regard to the reasons as a whole and read fairly, no error is discernible in the approach of the Tribunal. Accordingly the application for leave to amend is refused and the appeal must be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies. Associate:
Dated: 21 December 2021
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