AKJ17 v Minister for Immigration

[2018] FCCA 974

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 974

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.424A,s.424AA

Applicant: AKJ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 290 of 2017

Judgment of: Judge Vasta

Hearing date: 16 April 2018

Date of Last Submission: 16 April 2018

Delivered at: Brisbane

Delivered on: 16 April 2018

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The Application filed on 1 February 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

SYG 290 of 2017

AKJ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 1 February 2017, the Applicant, AKJ17, has asked this Court to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). That decision itself affirmed a previous decision by the delegate of the Minister to not grant the Applicant a protection visa.

2. In short, his claims were these.  He is a citizen of Pakistan.  He claims to fear harm from the extremist wing of Sipah-e-Sahaba, which I will refer to as SSP. 

3. He claims to fear harm from SSP because of his religious activities.  He said to the Tribunal that in 2007 he was made redundant from his position with Gulf Air and was given a sizeable sum in redundancy pay. 

4. He then began to participate in religious activities such as preaching. He would preach the Muslim faith from the Shia section of the Muslim community.  He claimed that whilst preaching, some Sunni Muslims, in effect, heard “the truth” and converted to Shia Islam. 

5. He began making these conversions up to a point where persons of the Sunni religion were threatening him to stop this preaching practice.  He said that he began to be followed and so he avoided going out. 

6. He said that on 8 September 2012 he was travelling in a car with friends when the car was surrounded and shot at by men on motorbikes.  He said that his friend was shot dead and the car crashed.  He himself was injured.  He claims that he was unconscious for 35 hours and he was in hospital for two weeks.

7. After being released from hospital, he started a new job and moved to Islamabad or Rawalpindi with his wife, daughter and mother.  He said that, despite ceasing his religious activities when he moved, he received a threatening phone call saying that they knew who he was and that he could not escape so easily. 

8. On 27 August 2013 he went to Malaysia.  He intended to seek asylum there.  However, a couple of days later, he received a phone call from his wife informing him that there had been a shoot-out at their house the night before and his mother had been killed. 

9. He returned to Pakistan that day.  Within weeks, he applied for a visa to the United States, but he ultimately decided not to go there because his cousin told him that the situation was bad for Muslims.  He then applied for a visitor visa to Australia.  He arrived in Australia on 10 January 2014 on that visitor visa. 

10. On 24 February, some six weeks or so later, he applied for the protection visa. 

11. On 20 February 2015, a delegate of the Minister refused to grant him the protection visa.  And so on 19 March 2015, he sought review of the delegate’s decision before the AAT. 

12. On 13 September 2016, 9 November 2016 and 18 November 2016, the Applicant appeared at hearings before the Tribunal.  And on 25 January 2017, the Tribunal affirmed the decision under review. 

13. The Applicant appeared before Registrar Morgan in the Sydney Registry on 2 March 2017.  The Registrar asked the Applicant to compile some written submissions to go with the grounds of his application.  The matter was listed for callover in December of 2017. 

14. The Applicant attended that callover before Her Honour Judge Barnes on 13 December 2017 and, at that time, Her Honour transferred the matter to the Brisbane Registry because the Applicant had moved to Queensland. 

15. There is no notation on the file as to how today’s date was arrived at, but it does seem that the matter was somehow listed before me today, 16 April 2018.  And the Minister, the Applicant, and the interpreter have all attended. 

16. The Minister lodged his submissions last week.  The Applicant did not lodge any submissions.

17. The grounds of this application, as filed in this Court, were as follows: 

    “1. The second respondent failed to comply with mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the application (sic) understood why that information was relevant to the review and the consequence of its being relied upon, and invite the Applicant to comment upon or respond to that information.

    Particular:

    The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 

    2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the exercise of risk to life and fear of significant harm to the applicant upon his returns (sic) to Pakistan. 

    3. The Tribunal failed to consider integer of the applicant’s claim, in failing to consider whether or not a low profile shia (regardless of their specific of affiliation or past persecution) in Pakistan was at risk of harm Talibans and Sunni and Sipah sahaba and not able to access effective protection.” 

18. Before me today, the Applicant did not really seek to agitate any of those grounds.  He had the assistance of an interpreter.  He first said to me that he did not really understand the Tribunal’s decision. 

19. I explained to him that the Tribunal had looked at all of his circumstances and the Tribunal ended up finding these things:

    a)that it did not find him to be a credible or reliable witness;

    b)his evidence about his religious activities and involvement with his organisation was inconsistent, vague and unconvincing; 

    c)that his evidence about coming to the adverse attention of the SSP and the death threats was vague, inconsistent, difficult to understand and difficult to believe;

    d)that his evidence with regards to the claimed attack on 8 September was inconsistent and unconvincing and was in contradiction to aspects of the police report and media article involving that particular incident;

    e)that his evidence in relation to the attack on his home was inconsistent;  and

    f)that the delay in leaving Pakistan and applying for protection was not consistent with someone who was leaving a state of persecution. 

20. I told the Applicant that the Tribunal had said that they did not accept his account of events and considered that they were fabricated in order to bolster his claims of protection. 

21. After I explained all of those things, I asked the Applicant what else it was that he wanted to say to me considering that my role here was to review the decision and not sit as a Court of Appeal on the decision. 

22. The Applicant told me that he had evidence in a CD.  He said that he was working with an organisation and was converting people to Shia. 

23. He said that he sent documents to the RRTA which were two medical reports, a letter from human resources and a letter from the organisation with which he was working to convert people to Shia.  He told me that low-profile people or Shia were also being targeted in areas of Pakistan and that he said that, “If I go back to Pakistan, there would be a real risk.  The news that comes out of Pakistan is not always correct.” 

24. With regard to the actual grounds of review, I can deal with them fairly quickly.

25. There is no particularity as to what the information was that the Applicant claims should have been given to him under s.424A or s.424AA. Without that particularity, there is no ground for me to consider because there is nothing before me that suggests that there was any information that was not given to the Applicant. In fact, if one looks at the very detailed 40-page reasons of the Tribunal, all matters were well and truly canvassed with the Applicant.

26. Ground two of the Applicant’s application about the misconstruing of the risk is really nothing more than an impermissible attempt for this Court to consider or reconsider the merits of his application and does not disclose any form of jurisdictional error.

27. The third ground, again, without specific particularity, does not disclose any error in the Tribunal’s reasoning.  It is quite obvious that the Tribunal spent quite a deal of time in going through what were the risks to a person in the situation that the Applicant was in as to what would happen if they return to Pakistan.  And for that reason, there is no merit in that ground, either. 

28. But, as I say, those three grounds were not pressed before me.

29. With regard to the fact that he says that he had sent documents that were not considered by the AAT, I have been helpfully reminded by Mr Galloway for the Applicant of what the Tribunal had said at paragraph 83 of their reasons.  That paragraph reads:

    “83. When the Tribunal asked him explain why he had not provided a letter from Anjuman Jannisarane Ahel-e-Bait that corroborated his claims, he responded by claiming he had sent the delegate an email with a letter from the organisation confirming his claims;  however, when the Tribunal noted that there was no record of such a letter on the Department or Tribunal file, his response indicated that the letter he was referring to was the letter of appreciation, which, as noted above, did not actually confirm or support his claims but, rather, referred to activities that he had not claimed to have engaged in…”

30. It seems to me, then, that there was no information that the Tribunal had before it that it did not consider.  Having considered all of the information that there was before it, it cannot be said that the Tribunal has made any jurisdictional error. 

31. The claim now that low-profile people are also being targeted was certainly something that the Tribunal looked at as to whether or not there was a real risk of serious harm being afforded to the Applicant if he were to return to Pakistan. 

32. Having gone through the extensive country information, the Tribunal came to its decision.  Such a decision was open to it on the evidence. 

33. Having regard to all of those matters, I am not persuaded that there has been any jurisdictional error.  I therefore dismiss the application with Costs in the sum of $5600.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 15 May 2018