AKH16 v Minster for Immigration

[2016] FCCA 3492

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKH16 v MINSTER FOR IMMIGRATION & ANOR [2016] FCCA 3492

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(aa)

Applicant: AKH16

First Respondent: MINSTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 334 of 2016

Judgment of: Judge Riethmuller

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Melbourne

Delivered on: 16 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Chaile

Solicitors for the Applicant: Sabelberg Morcos Lawyers

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 334 of 2016

AKH16

Applicant

And

MINSTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 January 2016.  The applicant sought a protection visa in November 2012.  The applicant comes from Pakistan.  A delegate of the Minister refused to grant the visa in March 2014 following which the applicant applied to the Tribunal and before which he gave evidence and presented arguments and materials. 

2. The Tribunal ultimately dismissed his application.  The substance of the applicant’s application was that he was at risk on the basis that he was a member of the Bangash tribe, who is Shia Pashtun and who comes from Parachinar.  There are a number of aspects to the applicant’s identity in this regard which complicates the decision making process somewhat.  Importantly in this case though the applicant’s claim also related to the fact that he was a bus driver and taxi driver with those particular religious and ethnic identities. 

3. The applicant relied upon the violence that had occurred in Parachinar for some years and the dangers upon the roads, particularly the fact that in years gone by the Taliban had stopped the Parachinar people moving around Pakistan, blocking roads and making notes of the identity of drivers and attacking drivers.  The Tribunal clearly identified the applicant’s claim as a driver at paragraph [41] saying:

   41.  The Tribunal has considered the applicant’s claim that he will be specifically targeted because the Taliban know him as a driver and took a photo of his NIC, before being told that it he was ever seen again he would be killed.  It was submitted that the Taliban have an intelligence network that would reveal the applicant, and if he was ever stopped or kidnapped he would be killed because they were aware of him.

4. The Tribunal dealt with the question as to whether or not the Taliban would have an interest in the applicant as an individual, as opposed to a member of one of the various groups and rejected this claim saying at paragraph [43]:

   43.  The Tribunal does not accept that the Taliban have an ongoing interest in the applicant, that they would specifically target him because of his background or because he was a driver, or because he was previously warned and a photo taken of his ID. The Tribunal does not accept that the ‘impressive intelligence network’ [FN P9 of 6 July 2015 submission] of the Taliban would be utilised to search out the applicant, given his low profile, or that information about the applicant would be collected and shared in the event that the applicant ever came to the attention of the Taliban again. The applicant has no specific attributes that would lead the Taliban to seek him out, or seek to remember him for future reference. That they took a photo of his licence would not mean that they have kept or circulated such an item, or that it would mean that the applicant would be harmed in the future.

5. The Tribunal then went on to consider safety generally in the region and saying:

   45.  The Tribunal has considered the general information about Parachinar and the Kurram region of Pakistan more generally in detail below. There was some concern about the Thal road being targeted, however the road has been opened and operating without report of incidents for some time. The only report of violence on the roads as identified by the Tribunal was a security vehicle which hit a landmine, killing the two security occupants. The Tribunal has not identified other information about roadblocks or checkpoints being established that may affect the applicant. The country information cited in the applicant's submission is quite dated in nature, in particular the information at paras 22 and 23 of the July 2015 submissions. The Tribunal considers that the country information does not support the contention that drivers in the Parachinar and broader Kurram region of Pakistan face a real chance or real risk of harm.

   46.  The Tribunal considers that the applicant returning to drive cars in the Parachinar and broader Kurram region does not place him at risk of being harmed, based on the available country information. The Tribunal considers that the applicant could return to such an activity without facing a real chance of serious harm or a real risk of significant harm.

   47.  The Tribunal finds that the applicant does not have a real chance of serious harm arising out of his being a Pashtun Bangash Shia driver of cars in the Parachinar region of Pakistan. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

6. Ultimately the Tribunal concluded that it did not accept that there was the requisite degree of risk to the applicant, saying:

   84.  Given that this improvement in the security situation in the applicant's home region has been ongoing for an extended period, the Tribunal considers that there are grounds to determine that the prospect that the situation in the applicant's home region will remain peaceful, now and in the reasonably foreseeable future, is quite high.

   85.  The Tribunal considers on the country information it has read, including that submitted by the applicant's agent, and the country information included above, that the situation in the Parachinar region has improved to the extent that the chance or risk of the applicant being harmed can only be considered to be remote or speculative. The Tribunal does not accept that that applicant will be harmed on return to Parachinar for these reasons.

   86.  The Tribunal finds that, individually and cumulatively,  the applicant does not have a real chance of serious harm arising from his being a Shia, a Bangash tribe member , a Pashtun, or as a Pashtun Shia Bangash from Parachinar, attendant anti-Taliban political opinions arising from this background, any imputed pro-western political opinion, or associated membership of particular social groups claimed a Shia Pashtun Bangash from the Parachinar region, or as a driver in Parachinar of taxis or school buses, which include the Convention grounds of race, religion imputed political opinion and membership of a particular social groups that arise out of that combination.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons, now or in the reasonably foreseeable future.

7. The applicant in his further amended application relied upon two grounds for judicial review.  The second ground was not pursued as it alleged a misreading of country information which allegation, it seems, was fully answered in the written submissions of the Minister.  I therefore need to deal only with ground on.  Ground 1 is in the following terms:

   1.  The Tribunal applied the wrong test to the applicant’s claims for complementary protection and/or failed to consider an integer of a claim which arose on the materials, in that:

   (a) The Tribunal disposed of the applicant’s ckaims by reasons of being a taxi driver on the basis of it not giving rise to any “profile” capable of attracting protection under the Refugees Convention.

   (b) The was a sufficient finding to engage s5J(4)(c) of the Migration Act 1958 (Cth).

   (c) However, in relation to the applicant’s complementary protection claims, country information accepted by the Tribunal indicated that the bare fact of being a driver on the roads exposed a person to a greater degree of harm than other persons.

   (d) Although the Tribunal found that the applicant would not be targeted for harm by reason of any profile connected with his being a taxi driver, it do not consider the risk to which he was exposed to by the bare fact of his being a taxi driver.

8. The argument developed on the ground did not pursue the claim with respect to s.5J of the Migration Act 1958 given that it transpires that it was not in force at the relevant time but, rather, a claim that the Tribunal did not properly consider the extent of risk to the applicant when dealing with the claim pursuant to s.36(2)(aa). The Tribunal, if one looks at this part of the reasons in isolation, gives very brief reasons in this regard saying at paragraph [89]:

   89.  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. The thrust of the applicant’s argument is that the Tribunal ought to have considered the extent to which the applicant may have been at greater risk because he was a taxi driver rather than an average Bangashi Parachinar from Parachinar.  That is, that potentially if someone is out on the roads all the time as a taxi driver they may be somewhat more exposed than persons who are householders or undertaking other occupations.  There is no country information that could be pointed to indicate that such a theory is borne out by the evidence in country information.  The Tribunal looked closely at the country information referring to an attack in 2014 saying at paragraph [57]:

   57. For the period April 2014 to October 2014, two reports were located that referred to sectarian attacks in or near Parachinar. In June 2014, Radio Free Europe Radio Liberty reported that a passenger van hit a roadside bomb near the town of Parachinar, killing at least seven people and wounding at least three others. The report referred to the view of a local official who described the bomb blast as a 'sectarian attack', and a resident of Parachinar maintained that all the fatalities from the attack were Sunni Muslims. [FN ‘Bomb Kills At Least Seven in Northwest Pakistan’ 2014, Radio Free Europe Radio Liberty, 3 June < Accessed 8 October 2014; A separate report on the attack by the Indian based Institute for Conflict Management claims that the attack took place in the Khumasa area in Kurram Agency of FATA. See Institute for Conflict Management 2014, FATA Timeline – 2014 < Accessed 8 October 2014]  In April 2014, the pro-Shia news source Shia Post reported that a Shia taxi driver had been pulled out of his car and shot by Taliban gunmen near Parachinar. [FN ‘Shia taxi driver shot martyred in takfiri terrorist attack near Parachinar’ 2014, Shia post, 10 April < <  In March 2014, a driver was critically injured by a roadside blast in Parachinar. The bomb is reported to have been planned by militants. [FN Institute for Conflict Management 2014, FATA Timeline – 2014 Error! Hyperlink reference not valid.]

10. It appears that fortunately for the people of this region the level of violence has receded considerably resulting in far greater improvement in security conditions in the area.  The Tribunal recounted the more recent country information saying:

    60.  Prior to the December 2015 incident, the previous incident in Parachinar that caused significant civilian casualties was in July 2013, where two bombings of a market and bus stand killed 57 and injured 167 [FN “Death toll in Parachinar blasts rises to 57”, Dawn News Group – Pakistan, 27 July 2013, Between 22 April and 25 April 2014, a joint mission of staff from human rights organisations, including the UNHCR, visited villages throughout Kurram Agency to evaluate the need for humanitarian assistance and to assess security conditions for the return of internally displaced persons (IDP). In Parachinar, the joint mission found that both Sunni and Shia IDPs expressed a willingness to return but held the view that they would not be able to until there was an improvement in security conditions. The table below produced by the joint mission shows whether IDPs have returned to each of the villages visited in Upper Kurram Agency: [FN UN High Commissioner for Refugees 2017, Protection Cluster Mission to Kurram 22-26 April 2014, 9 May, p.4 The Tribunal put to the applicant a view that the country information regarding Parachinar and the Kurram Agency showed that the violence in this region had significantly reduced. The Tribunal noted that there had been an attack on a bus that had killed 7 people in June 2014, however this attack actually occurred near Peshawar, with the bus heading towards the Kurram Agency. This violence was not actually in Kurram. The Tribunal put to the applicant that the violence in his home area had significantly decreased, to the point where the Tribunal was considering whether the prospect of the applicant being harmed was one that was remote or insubstantial. The applicant stated that he believed he would be harmed in this region.

11. The Tribunal then went on to consider various other pieces of country information and more recent information, all of which led the Tribunal to the conclusions at paragraphs [84] to [86] of their decision that I’ve set out above.  The Tribunal also had regard to an incident in 2015 where there was a bomb explosion in a clothing market in Parachinar in which 25 people were killed and 70 injured.  With respect to this incident the Tribunal said:

    79.  The Tribunal accepts that on 13 December 2015 at least 25 people were killed and over 70 injured in a bomb explosion in the Eid Gah clothes market in Parachinar.  The Tribunal has considered whether this most recent attack was indicative of the increasing tensions in Parachinar and whether this incident would lead to further sectarian violence. 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 in the reports 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, the Tribunal considers that it would be premature to conclude that this attack - the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it 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. Having regard to all of the evidence before the Tribunal concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home in Parachinar.

    80.  The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in his home region for these attributes. The Tribunal considers that the country information provided in detail demonstrates that the situation in Parachinar, and in Kurram more generally, has witnessed a significant decline in the violence for what is now an extended period of time. The Tribunal accepts that there have been incidents of violence in the area, as detailed in the reports mentioned above. However these incidents are isolated and limited in the region for Parachinar Shias, Bangash Tribe members, Pashtuns, those attributed with anti-Taliban political opinions or pro-Western opinions, or people belonging to particular social groups that the applicant claims to be a member of. The Tribunal considers at present, the prospect of the applicant being harmed for these reasons is remote and mere speculation, and not one that constitutes a real chance or a real risk of occurring.

12. It appears clear that the Tribunal did consider whether or not there was risk to the applicant either because of his ethnicity, his occupation, or generally in paragraphs [84] to [86].  The overwhelming difficulty for the applicant is the finding by the Tribunal based upon country information (and one which appears to have been open to the Tribunal) that the security difficulties in that area had alleviated and that the applicant’s home region was likely to remain peaceful into the foreseeable future. 

13. In light of this information it is difficult to see how the Tribunal could have made a finding that he was at risk as a taxi driver when there were simply no risks generally and no information on which to conclude that there were specific risks to drivers any longer.  In these circumstances the findings that were made with respect to the protection Convention grounds appear to me to be more than adequate to explain why the Tribunal reached its conclusions with respect to the complementary protection criteria. 

14. In these circumstances I am not persuaded that the applicant has established a ground for judicial review in this case and, I therefore, dismiss the application. 

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

Date: 5 July 2017