AJP16 v Minister for Immigration

[2016] FCCA 3422

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJP16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3422

Catchwords:
MIGRATION – Application for protection visa – whether Tribunal failed to consider Applicant’s claims to fear persecution and/or significant harm – whether Applicant denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Minister for Immigration and Border Protected v MZYTS [2013] FCAFC 114

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Applicant: AJP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 320 of 2016

Judgment of: Judge Jones

Hearing date: 23 November 2016

Date of Last Submission: 23 November 2016

Delivered at: Melbourne

Delivered on: 23 November 2016

REPRESENTATION

Counsel for the Applicant: Sef-represented

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for judicial review filed on 22 February 2016 be dismissed.

2. The Applicant pay the First Respondent's costs fixed in the sum of $9,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 320 of 2016

AJP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

1. This is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 29 January 2016, in which the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant the Applicant a Protection (Class XA) visa (“the visa”).

2. The Applicant is a male citizen of Pakistan. His home town is in Parachinar, in the Kurram Agency of Pakistan. He arrived in Australia as an unauthorised maritime arrival on 9 August 2012 and applied for a protection visa on 24 December 2012. His claims to fear persecution and to be owed protection obligations are set out in a statutory declaration accompanying his visa application (CB 56-61).

3. The Applicant’s claims can be summarised as follows. The Applicant claims to fear harm in Pakistan from the Taliban due to the fact he is a Shia Muslim. He sets out a history of conflict between the Shia Muslims and the Taliban in his home area of Upper Kurram Agency since 2007, and of general violence occurring in that area. 

4. He set out the effect this had on him directly, in particular, the difficulties it caused him in travelling to and from the Federal Government College in Islamabad due to roads being blocked by the Taliban. He claimed that these difficulties caused him to miss the admission due date when he attempted to re-enrol in November 2010.  He claims that he then studied at the National Training Bureau, during which time he was assaulted and harassed by Sunni students who stayed at the same hostel as him. The Applicant’s migration agent made submissions on his behalf to the delegate also claiming that the Applicant was not able to relocate to another area of Pakistan. 

5. The delegate’s decision refusing to grant the visa to the Applicant was made on 24 March 2014 (CB 115-136). The delegate, in fact, accepted that the Applicant faced a real chance of being harmed as a Shia Muslim in the Kurram Agency, but found that the Applicant did not face a real chance of harm in Islamabad, and found that it would be reasonable for the Applicant to relocate to Islamabad.

6. The Applicant applied to the Tribunal for a review of the delegate’s decision on 27 March 2014. The Applicant’s migration agent provided lengthy written submissions to the Tribunal on 16 June 2015 (CB 183‑227). The Applicant attended the Tribunal hearing on 7 July 2015. The Applicant’s migration agent provided further written submissions after the hearing on 27 July 2015 (CB 244-250). I will refer to these as the post-hearing submissions.

7. In the Applicant’s submissions made by the migration agent on his behalf to the Tribunal, the submissions noted that the Applicant claimed to fear harm in his home region in the Kurram Agency, that his claims were based on his religion, tribal allegiance, an imputed anti‑Taliban political opinion and as a member of a particular social group comprising Shiah Bangash tribe members, a Shiah from Parachinar and an educated Muslim.

Judicial review

1. I will turn to the Tribunal decision shortly after I have set out the Applicant’s grounds for judicial review and his oral submissions. The Applicant was self-represented and he was assisted by an interpreter in the Pashto and English languages. I explained to the Applicant the nature of judicial review proceedings.  I emphasised that the function of the Court today is not to consider his circumstances and whether he deserves to be granted a visa, but rather whether the Tribunal made a legal mistake, this being a reference to jurisdictional error.

2. The Applicant applied for judicial review on 22 February 2016. On 27 October 2016 he filed a written submission which he described as a submission:

   for my case and present my arguments and the evidence against the decision made by Tribunal as it overlooked the facts in my case. 

3. I should note that the submission contains quite lengthy references to country information regarding violence in Pakistan, both generalised and targeted against Shias who have the same personal circumstances as the Applicant. I asked the Applicant whether this country information was before the Tribunal.  He said it was not. 

4. In his application for judicial review, the Applicant specified two grounds of judicial review, as follows:

   1. The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness.

   2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

5. I asked the Applicant to explain what he meant by ground 1(a) and (b), which are referred to in this decision as ground one and ground two respectively.

Ground one

1. In respect of the first ground, that the decision of the Tribunal is affected by error of law, the Applicant’s submission was, in essence, that the Tribunal failed to consider the following. First, that the area that he comes from, Parachinar, is affected by violence. He submits that the Tribunal failed to consider the country information, which sets out that serious violence that exists in Parachinar in the Kurram Agency. Secondly, that the Tribunal failed to consider the fact that he was assaulted in Islamabad constituted serious harm. 

2. Later in his submissions in reply, the Applicant said that the Tribunal’s conclusions or reasons for not finding that the assault fell within the meaning of “serious harm” failed to consider his particular circumstances, namely that he was a young boy who would be scared to report the harm, and his evidence that the roads at that time were blocked so he could not leave Islamabad. 

3. The Minister has filed two written submissions, on 10 August 2016 and on 2 November 2016, copies of which the Applicant confirmed he had. Counsel for the Minister made oral submissions directed particularly to the submissions made by the Applicant today. I indicate here that I found the Minister’s submissions compelling and convincing. I will not set them out in detail now, but indicate that much of the submissions made form the basis for my decision in this matter.

Tribunal decision

1. Turning to the decision record of the Tribunal (CB 255-278), the Tribunal set out in full the Applicant’s statutory declaration made with his protection visa at [19], and then at [20] and [21] of the decision record, the Tribunal set out the delegate’s decision and the submissions made by his migration agent to the delegate, and to the Tribunal itself.

2. Having done this, the Tribunal then proceeded to make its findings and reasons (commencing at CB 262), and, turning to the Applicant’s claims that he was assaulted and harassed in Islamabad, the Tribunal discussed the Applicant’s study history and experience in Parachinar and in Islamabad (CB 263 at [31]). The Applicant gave details of his circumstances from 2008 to 2011 whereby the violence that occurred in Parachinar affected his study, including the ability to safely travel to Islamabad. The Tribunal accepted that it was difficult to travel around the Kurram region from 2007 to 2011 due to the violence that occurred in that area, and that this would have affected his studies.

3. At [32] of the decision record, the Tribunal dealt with the Applicant’s evidence about what happened to him in Islamabad, including his claims that he was harassed by Sunni Muslim students and assaulted one night at his hostel. At [34] of the decision record, the Tribunal member indicated that he had actually questioned the account of the Applicant, in particular regarding the fact the Applicant had remained at the college for five more months, and the fact that he had not made complaints to the college administration. 

4. At [34] of the decision record, the Tribunal notes the Applicant’s evidence that he did not complain because he would not be listened to because he was a Shia. The Tribunal, having considered the evidence and the Applicant’s explanation, said (CB 263 at [34]):

   The Tribunal considers that the applicant chose not to report the verbal harassment he claimed he was receiving because he had no subjective fear arising from this treatment.  The Tribunal considers that the applicant has embellished this element of his claim.

5. At [35] of the decision record, the Tribunal then turned to consider the Applicant’s claim of an assault he experienced at college. The Tribunal said that it was plausible that such an incident took place, however, noted that the Applicant chose to remain studying at the school and continued his studies, though he moved to a different location.

6. The Tribunal said that it considered that the fact that the Applicant continued to study for a further two months at the school after May 2011, was a conscious choice of the Applicant, given he had nearly finished the course, and the Tribunal found that this demonstrated that the Applicant’s subjective fear of harm was limited. The Tribunal repeated these observations at [36] to [37] of the decision record, and it is evident from the Tribunal’s reasoning that it did not accept the incidents constituted harm, on the basis of the absence of the Applicant’s subjective fear of harm, because he failed to take action to protect himself, complain, or leave. 

7. The Tribunal, however, had taken into account country information at [38] of its decision record. The Tribunal drew the Applicant’s attention to protests by a group called the Youth of Parachinar. The Applicant said he was not involved in these protests, but the Tribunal noted that Parachinar students were prominent in Islamabad and were not harmed during this time. The Tribunal then made its findings in relation to the Applicant’s claim of past harm in Islamabad at [39] of the decision record and said:

   The Tribunal does not accept that the applicant was singled out and sought by any groups in Islamabad. The Tribunal does not accept the characterisation of the applicant’s circumstances as establishing a well-founded fear of harm on the basis of a political opinion arising out of his interaction with pro-Taliban supporters who mistreated him and identified him whilst he was in Islamabad. The Tribunal does not consider that the mistreatment that the applicant experienced constitutes serious or significant harm, nor that there was any relation to any Taliban support in the limited harassment that the applicant received.

Consideration

1. Again, the Tribunal made it clear, as it had earlier, that its conclusions in respect of this were based on its findings that the Applicant himself lacked a subjective fear of harm.

2. The Applicant claims that the Tribunal failed to consider certain things such as his situation as a young boy and the fact that the roads were blocked, however, it is evident that the Tribunal raised with the Applicant its concern about the fact that he continued to stay at the college and it is not apparent these issues were raised by the Applicant. 

3. Having regard to the Tribunal's reasoning, I am satisfied that the Tribunal did consider the Applicant's claims about his circumstances or claims as to past harm in Islamabad, but found that it was not satisfied that this constituted serious harm, and certainly was not a basis for finding that there was a real chance the Applicant would face serious harm on return to Pakistan. Consequently, I find there is no jurisdictional error raised on this basis. 

4. The next area of consideration is the Applicant's complaint that the Tribunal failed to consider the violence generally in Parachinar and in relation to a person such as himself. 

5. In fact, much of the Applicant's submissions appear to be focused on what he says was the Tribunal's failure to consider the fact that his hometown, Parachinar, is affected by the level of violence he claimed it is. The Tribunal considered this claim, and, in the course of doing so, had regard to a considerable amount of country information, including country information that the Applicant's migration agent had sent to the Tribunal (CB 265 at [46]).  In addition, the Tribunal considered country information in relation to the circumstances that affected the Applicant's hometown between 2007 and 2012 and accepted that persons in the Applicant’s circumstances suffered persecutory harm, but then proceeded to consider, in some detail, the most recent information about violence in his hometown in Parachinar. 

6. The Tribunal commenced by noting the Applicant's claim that he would be harmed in his home region of Pakistan because of his being a Shia Muslim, a Bangash tribe member, a Shia from Pakistan, having an imputed political opinion against the Taliban arising from his background and membership of various particular social groups arising from his background (CB 265 at [45]).

7. The Tribunal then turned to consider more recent country information (CB 266-267 at [48]-[72]). The Tribunal considered a 2015 DFAT report, which was referred to by the Applicant's agent and updated reports of DFAT in January 2016.  It considered particular incidents of violence in Parachinar in December 2015. It referred to other country information, for example, from the FATA Research Centre and UNHCR assessments. On the basis of this recent country information, the Tribunal found, for example, having regard to the January 2016 DFAT report, that the risk of being harmed in the region of Parachinar had reduced since 2012 (CB 267 at [48]). 

8. Further, at [59] of the decision record, the Tribunal notes that it put to the Applicant country information regarding Parachinar and the Kurram Agency, which showed that the violence had significantly reduced. The Tribunal put to the Applicant that because of the significant decrease in violence in his home area, it was considering whether the prospect of the Applicant being harmed was one that was remote or insubstantial. The Tribunal noted that the Applicant said in response that he believed he would be harmed in this region. The Tribunal said (CB 275-276 at [73]):

   As discussed above, the Tribunal does not accept that there is any particular personal circumstances of the applicant that would mean that he would be singled out or targeted by the Taliban or any insurgent group…

9. Given that the Tribunal did not accept that the Applicant would be harmed because of his education, it then said that it did not accept (CB 276 at [75]):

   ...that the applicant has been personally targeted because he is a Shia, Bangash tribe member, a Pashtun, or as a Pashtun Shia Bangash from Parachinar…

10. In other words, the Tribunal, having considered the country information, also attended to the particular circumstances of the Applicant in considering whether the Applicant would face harm or whether there was a real chance he would be persecuted if he returned to his home region.  It is relevant to note that the Tribunal considered very recent information about violence in Parachinar. For example, it referred to an explosion on 13 December 2015 in the market in Parachinar and, in fact, turned its mind to consider whether this was indicative of increasing tensions in Parachinar (CB 276 at [76]).  It said, however:

    The Tribunal considers, however, that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013.  Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce is not holding and all indications are that the security situation has been relatively stable with the exception of incidents like those referred to by the FATA Research Centre. The Tribunal considers that in this context it is the terrorist attack in Parachinar on 13 December 2015 which must be viewed as anomalous…

11. The Tribunal went on to say that it would be premature to conclude that this attack marked a definite change in the security situation in Parachinar.  Later the Tribunal said (CB 276 at [76]):

    … [i]t would be mere speculation to find on the evidence before me that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future…

12. The Tribunal then went on to make its ultimate findings, that it considered there is only a remote chance the Applicant will be killed or injured in such terrorist attacks if he returned to his home in Parachinar, and it did not accept the Applicant faced a real chance of serious harm or a real risk of significant harm in his home region because of his attributes (CB 276-277 at [77]). It is evident from this reasoning of the Tribunal that, in fact, it gave very careful consideration to the country information, both past and recent, about the circumstances in the Applicant's home region, and gave consideration to the Applicant's personal circumstances and claims in the context of this country information. 

13. It is well settled that the appraisal of country information that the Tribunal relies on is a matter for the Tribunal, including the choice and the weight it gives to the country information. It is also clear from the Tribunal's detailed reasoning that it considered recent country information, including country information provided by the Applicant's migration agent on his behalf.  The Tribunal gave careful consideration to the Applicant's claims in the context of this country information and I am satisfied that this consideration that the Tribunal engaged in placed it outside the circumstances which confronted the Full Court in Minister for Immigration and Border Protected v MZYTS [2013] FCAFC 114.

14. Consequently, having considered the Applicant's claims in the context of country information, and having made its ultimate findings about the risks of harm if the Applicant was returned to Parachinar, the Court is satisfied that the Tribunal did not engage in a legal mistake or jurisdictional error. 

15. I note that there is a further ground that arises out of the Applicant's submissions about the failure of the Tribunal to consider the evidence which the Court identified, which seemed to be this: that, in the context of the overwhelming evidence before the Tribunal, the findings of the Tribunal regarding the harm the Applicant would face, if returned to Pakistan and his hometown in Parachinar, were unreasonable in a legal sense. 

1. I asked the First Respondent to address this ground in the submissions.  Counsel for the First Respondent did so and made submissions, which I agree with. Firstly, the relevant decision of the High Court is Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. The judgment in that case that is most commonly referred to in considering whether the fact finding of the Tribunal discloses legal unreasonableness is the judgment of Crennan v Bell JJ at [130] to [135], in which their Honours stated that the proper question in relation to a claim of legal unreasonableness was whether it was open to the Tribunal to make factual findings on the material before it.

2. Counsel for the First Respondent submitted that the Tribunal's reasons indicated logicality and a process of reasoning that could not be said to be so illogical or irrational so as to constitute unreasonableness in a legal sense. I agree with this submission, having regard to the reasoning of the Tribunal that I set out earlier in relation to this claim. The Tribunal's consideration was detailed and, in my opinion, the factual findings it made on the material before it were open to it and, consequently, there is no jurisdictional error on this ground. 

Ground two

1. Returning to the second ground of judicial review set out in the Applicant's application for judicial review, that is, that the Tribunal denied the Applicant procedural fairness. 

2. When asked to explain this ground, the Applicant's submissions were that the Department of Immigration considered that he would suffer harm in his home region but that he would relocate. I take this to refer to the delegate and the delegate's decision. In contrast, the Applicant submitted, the Tribunal did not accept that the Applicant would suffer harm in his home region. It seems to the Court that, in fact, the complaint may well involve a ground of review that the Tribunal failed to comply with its obligations under s.425 of the Migration Act 1958 (Cth) (“the Act”). This argument relies on the proposition set out in the High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. That case stands for a proposition that rests on the concept of procedural fairness, namely, that an Applicant is entitled to assume that, on review, the issues to be considered will be those raised by a delegate and the delegate's decision.

3. In circumstances where issues are not raised by the Applicant or his representative in submissions to the Tribunal, if the Tribunal is considering issues different to those raised in the delegate's decision which may be dispositive to its review, then the Tribunal is obliged to raise it with the Applicant during the course of the hearing, or by an indication in a written invitation by the Tribunal either pre or post the Tribunal hearing.

4. It is manifestly clear on the face of the Tribunal decision record that the Tribunal put the Applicant on notice about an issue which may be dispositive to the review, namely, that, having regard to recent country information, the prospect of the Applicant being harmed was remote or insubstantial. 

5. It is also to be noted that the post-hearing submissions made by the Applicant's migration agent directly focused on the security situation in the Kurram Agency (CB 244-249).  In other words, I am satisfied that the issue of the harm that the Applicant would experience if returned to Parachinar was drawn to the Applicant's attention. He was given an opportunity to provide evidence and make submissions in relation to this matter and, in fact, this issue was directly addressed in his post‑hearing submissions.  I also note, for completeness, this being drawn to the Court's attention, that in the submissions of the Applicant's migration agent to the Tribunal prior to the hearing, the migration agent addressed the issue of harm the Applicant might suffer in the Kurram Agency (CB 197-201). 

6. Thus it could be said that the Applicant, through his migration agent, was aware of this issue. Consequently, I find that the Tribunal complied with the obligations under s.425 of the Act and there is no other material before the Court that would satisfy the Court that the relevant statutory provisions in relation to procedural fairness were not complied with by the Tribunal. Therefore, I find that the claim of a ground of judicial review that the Tribunal denied the Applicant procedural fairness does not give rise to jurisdictional error.

Conclusion

1. For the reasons set out in my judgment, I find that the Tribunal did not engage in jurisdictional error. 

2. Accordingly, I will dismiss the application for judicial review and make an Order for costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     13 January 2017