ALP20 v Minister for Immigration

[2020] FCCA 3070

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3070

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal failed to consider relevant information – whether the Tribunal failed to consider country information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 476

Federal Circuit Court Rules 2001 (Cth), rr. 44.12, 44.13

Applicant: ALP20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 234 of 2020

Judgment of: Judge Street

Hearing date: 12 November 2020

Date of Last Submission: 12 November 2020

Delivered at: Sydney

Delivered on: 12 November 2020

REPRESENTATION

Solicitors for the Applicant: Mr T Mwilambwe, Armstrong Legal

Solicitors for the Respondents: Mr X Goffinet Sparke Helmore

ORDERS

1. The applicant’s oral application for an adjournment is dismissed.

2. The applicant’s oral application for leave to amend is dismissed.

3. The application in a case dated 8 March 2020 is dismissed.

4. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

5. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 12 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 234 of 2020

ALP20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 4 February 2020 seeking a Constitutional writ in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 January 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country.

3. The applicant was born in a particular village in the Khyber Pakhtunkhwa Province (“KPK”) which, prior to 2018, was part of the Federally Administered Tribal Area (“FATA”) which was then merged with KPK.

4. The applicant was found to be a Shia Muslim and a member of the Bangash tribe and a Pashtun. 

5. The applicant lived in his home village until 2009 and then lived at another location for two years, and then, in a particular city from November 2011 until January 2014. 

6. The applicant’s family returned to his home village in early 2014, and the applicant departed from Australia in April 2015. 

7. It is apparent that the applicant holds a Pakistani passport that was issued in December 2013. 

8. The Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. 

9. On 22 February 2016, the applicant applied for review. 

10. The applicant appeared before the Tribunal to give evidence and present arguments on 26 March 2019. 

11. The Tribunal identified the background to the Protection visa application as well as the applicant’s background. 

12. The Tribunal also made reference to the existence of a s 438 certificate which was brought to the attention of parties and identified as being treated as invalid. The applicant suffered no practical injustice in the conduct of the review by reason of the s 438 certificate, given the disclosure of the same to the representative and the applicant at the hearing and the Tribunal identifying the same as being regarded as invalid.

13. The Tribunal correctly identified the relevant law including at Attachment A to the Tribunal’s reasons. 

14. The Tribunal made adverse credibility findings in relation to the applicant’s claims of an illicit relationship with ‘M’ that gave rise to a fear for the applicant in returning to his home country.

15. The Tribunal identified detailed reasons in support of the adverse credibility findings, referring to several aspects of the applicant’s claims being incongruous and difficulties with the location where the applicant asserted that he was, at the relevant time. 

16. The Tribunal did not accept the applicant’s claim in relation to meeting a particular person, ‘M’, on several occasions, or that her cousins spotted them in a café on Valentine’s Day in 2014, that the relatives extracted from the person the applicant’s residential address, or that the applicant returned to a particular location to start work in response to immediate imminent threats from the person’s family.

17. The Tribunal did not accept that the applicant was in a relationship with the person from a different tribe, and a Shia. 

18. The Tribunal did not accept that there were subsequent efforts between the two families and tribes to negotiate a peaceful settlement. The Tribunal provided reasons in support of those adverse credibility findings.

19. The Tribunal did not accept the applicant’s claim that he had departed Pakistan to avoid an honour killing. 

20. The Tribunal found that the applicant does not have a well-founded fear of persecution. 

21. The Tribunal found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

22. In the context of making its findings, the Tribunal did identify that there is a small but nonetheless real chance in the reasonably foreseeable future that the applicant could be targeted and subject to harm, once again, on tribal or similar grounds in his home village.

23. The Tribunal correctly identified the requirements of s 5J(1)(c) of the Act, that the well-founded fear of persecution must relate to all areas of a country. 

24. The Tribunal referred to a range of country information. 

25. The Tribunal referred to the applicant’s claims and evidence. 

26. The Tribunal found that there was no real chance of discrimination amounting to serious harm. 

27. In Pakistan’s large cities, the Tribunal took into account the applicant’s own experience when he was studying. 

28. The Tribunal was not satisfied that the applicant’s academic or career or his residence in Australia would establish him with a profile in Islamabad, or Lahore, or one of the larger cities outside Kurram Agency. 

29. It was in those circumstances that the Tribunal found that the applicant does not face a real chance of being targeted as a Pashtun, Shia, Shia professional, or any combination of these factors outside Kurram Agency, in a major city such as Islamabad and Lahore. 

30. The Tribunal, in relation to complementary protection, considered the applicant’s personal circumstances, his education and background in considering the reasonableness of the applicant’s ability to relocate. The Tribunal took into account his personal and family circumstances and his qualifications and work experience.

31. The Tribunal found that it was not impractical for the applicant to live elsewhere in Pakistan, rather than returning to his home village. 

32. The Tribunal found that in areas outside Kurram Agency such as Islamabad and Lahore, there is no real risk that the applicant would be subject to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon him. 

33. The Tribunal concluded that there are areas outside the Kurram Agency such as Islamabad and Lahore where there would not be a real risk that the applicant would suffer significant harm, and made express reference to having had regard to his circumstances as a whole, and found that it was reasonable for the applicant to relocate to such an area, in making adverse findings in respect of complementary protection. 

Before the Court

1. These proceedings were the subject of orders made by a Registrar on 27 February 2020 fixing the matter for a show cause hearing today. Those orders also provided an opportunity for the applicant to file an amended application, affidavit evidence, and submissions.

2. An application was made this morning by the applicant for an adjournment and the applicant also applied for leave to amend and rely upon an amended application. Mr Mwilambwe, on behalf of the applicant, made submissions in relation to the difficulties the applicant had faced by reason of having lost his employment and the difficulty with COVID-19 in obtaining legal representation.

3. Mr Mwilambwe made clear that the applicant did approach counsel and obtain some advice and it is apparent that Mr Mwilambwe was approached in late October. 

4. No affidavit evidence has been provided by the applicant in support of the application to amend or the adjournment application.

5. While the Court accepts Mr Mwilambwe’s submissions in relation to the applicant’s employment history and that he has now been able to obtain employment, there is no proper evidence that explains why the applicant did not comply with the orders that were made by the Registrar, and a last minute application for an adjournment would only be granted if the Court was satisfied that there is an arguable case of relevant error that has been identified and/or that the interests of the administration of justice otherwise required. The Court finds that the amended application does not identify an arguable case of relevant error and that an adjournment is not warranted in the interests of the administration of justice.

6. The amended application that has been filed, at an impressionistic level, fails to identify any reasonably arguable ground of relevant error. The application, on its face, appears in substance, in proposed grounds 1 to 6, to be nothing more than an invitation to merits review. The proposed grounds in the proposed amended application are as follows:

   1.The decision was affected by narrow ultra vires (subject matter) by reason of the Second Respondent (‘the Tribunal’)’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether there is a real chance of persecution relates to all areas of a receiving country. Pursuant to s 5J(1)(c) of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal failed to take into account all relevant information available in making a finding of jurisdictional fact that there is not a real chance of persecution relating to all areas of Pakistan.

   2.The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether the persecution will amount to ‘serious harm’. Pursuant to ss 5J(1)(a), 4(b) and 5 of the Act, the Tribunal failed to take into account all relevant information available in making a finding of jurisdictional fact that the persecution will not amount to ‘serious harm’.

   3.The decision was affected by broad ultra vires (irrelevant considerations) by reason of the Tribunal taking into account considerations of the proximity of risk of serious harm. Pursuant to ss 5J(1)(a), 4(b) and 5 of the Act, the Tribunal took into account irrelevant consideration of the proximity of risk of serious harm. The text of s 5J of the Act does not in itself prescribe the proximity of the serious harm as a mandatory consideration.

   4.The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether there will be ‘significant harm’. Pursuant to s 36(2A) of the Act, in the same veil as ground 1 and 2 above, the Tribunal failed to take into account all relevant material available in making a finding of jurisdictional fact that there is no ‘significant harm’.

   5.The decision was affected by narrow ultra vires (subject matter) by reason of the Tribunal’s failure to correctly make a finding of jurisdictional fact in relation to the criterion of whether it would be reasonable for the Applicant to relocate to an area of Pakistan where there will not be a real risk where the Applicant will suffer ‘significant harm’. Pursuant to s 36(2B)(a) of the Act, in the same veil as ground 1, 2 and 4 above, the Tribunal failed to take into account all relevant material available in making a finding of jurisdictional fact that it would be reasonable or practical for the Applicant to relocate to another area of Pakistan.

   6.The decision of the Tribunal is otherwise legally unreasonable.

7. Proposed ground 1 reflects a disagreement with the adverse finding as to there not being a real chance of persecution relating to all areas of Pakistan. The unparticularised assertion of a failure to take into account “all relevant information” does not identify a reasonably arguable error. The Tribunal does not have to refer to every piece of evidence before the Tribunal. The formulation of alleged error by reference to all relevant information appears to invite impermissible merits review and proposed ground round 1 does not disclose an arguable case of jurisdictional error.

8. Proposed ground 2 is similarly worded by reference to “all relevant information” and the reference to “serious harm” reflects a disagreement with the adverse findings. No arguable case of jurisdictional error is disclosed by proposed ground 2. The assertion of irrelevant considerations in proposed ground 3 also appears to be no more than a disagreement with adverse findings and does not disclose an arguable case of jurisdictional error. Proposed ground 4 again refers to “all relevant material” and appears to be no more than a disagreement with the adverse findings and fails to identify an arguable case of relevant error. Proposed round 5 also refers to “all relevant material” and reflects a disagreement with the adverse findings. Proposed ground 5 fails to identify an arguable case of jurisdictional error.

9. Ground 6 is an assertion that the decision is otherwise unreasonable. The adverse outcome is one to which a reasonable decision maker could come for the reasons given by the Tribunal. On the face of the Tribunal’s reasons, the Tribunal had a genuine intellectual engagement with the applicant’s claims and evidence and the applicant had a real and meaningful hearing before the Tribunal.  The Tribunal correctly identified the relevant law and made logical and rational reasons in support of the adverse credibility findings. Accordingly there is an evident and intelligible justification for the adverse outcome and findings as reflected in the Tribunal’s reasons summarised above. Proposed ground 6 with its reference to “otherwise” appears to reflect again a disagreement with the adverse findings inviting merits review. It is not apparent that three is any basis for the contention of legal unreasonableness. No arguable case of jurisdictional error is disclosed by proposed ground 6.

10. No arguable case is disclosed by proposed grounds 1 to 6 of the amended application. It is in these circumstances that the Court is satisfied that the belated application for leave to amend is not warranted in the interest of the administration of justice. For these reasons leave to amend was refused.

11. Mr Mwilambwe properly conceded that the grounds in the originating application the subject of the show cause hearing do not identify any arguable case of relevant error. That was a proper concession for Mr Mwilambwe to make. 

The grounds

1. The originating application identified the following three grounds:

   1.The AAT failed to consider and assess all relevant information provided in support of my application

   2.The AAT failed to judge the merit of the case in light of country information report

   3.Hence, there is highly possibility of legal mistake exists in the AAT refusal decision

2. In the absence of particulars, none of those grounds are incapable of making out any arguable case of relevant error. There was no relevant information identified that the Tribunal failed to take into account. It is a matter for the Tribunal what country information to which it has regard, and ground 3 is nothing more than speculative.

3. The Court is satisfied that the application has not raised an arguable case for the relief claimed under r 44.13(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”):

   (1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

4. Applying that Rule, the application is not one that satisfies the Court that there is an arguable case for relief claimed and accordingly the Court is satisfied that the application should be dismissed under r 44.12 of the Rules.

5. Further, even if the Court were to take into account the proposed grounds that were identified in the amended application, the Court is not satisfied that the applicant has raised an arguable case for the relief claimed at an impressionistic level in relation to the amended application.

6. It is for the reasons identified above that the Court found that it is not in the interests of the administration of justice to adjourn the matter or to grant leave to amend.

7. Further, for the reasons the Court has given, the application is not one that raises an arguable case for the relief claimed and the Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 18 December 2020