AML15 v Minister for Immigration

[2016] FCCA 2115

FEDERAL CIRCUIT COURT OF AUSTRALIA

AML15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2115

Catchwords:
MIGRATION – Judicial review – protection visa.

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Htun v Minister for Immigration (2001) 194 ALR 244
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137
SZPZJ V Minister for Immigration and Border Protection [2012] FCA 18

Applicant: AML15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 794 of 2015

Judgment of: Judge Harland

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Melbourne

Delivered on: 17 August 2016

REPRESENTATION

Counsel for the Applicant: Ms Levine

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the amended application filed 4 July 2016 is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 794 of 2015

AML15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Sunni Muslim from Pakistan. He came to Australia on a student visa.

2. The applicant filed an application for a protection visa on 5 March 2013 which was three days before his student visa expired. The delegate handed down a decision on 23 March 2014. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 9 April 2015.  The applicant filed an application for judicial review on 16 April 2015.

3. The case was before the court on 11 February 2016 for the final hearing. The court granted the applicant’s application for an adjournment because the applicant had secured legal representation.

4. The applicant relies on the following grounds set out in his amended application filed on 4 July 2016:

   Ground 1

   The Tribunal misconstrued the forward-looking  "real chance" test in assessing whether  the Applicant faces a real chance of persecution from the Taliban or criminals associated  with the Taliban by reason of being a business owner exposed to extortion demands.

   Particulars

   a)     The Tribunal accepted that there is a real chance that, as a business owner, the Applicant will be required to pay extortion money to the Taliban or criminals associated with the Taliban.

   b)     The Tribunal  accepted that  business  owners who  do not pay what  is required by the Taliban face a real risk of serious or significant harm .

   c)      The Tribunal concluded  that the Applicant  would  continue to pay  extortion money  solely on the basis that he had done so in the past.

   d)     The Tribunal did not apply  any  forward-looking  assessment  to  the  question  of whether   the Applicant may fail to comply with extortion demands upon his return to Pakistan and may , as a result, be exposed to serious harm .

   Ground 2

   The Tribunal failed to consider a claim that  arose  before  it that the Applicant  faced  a real chance  of  harm  on  the  basis  of  imputed  political   opinion  by  reason  of  being   a  Mohajir whose   brothers   had   joined   the   Muttahida   Oaumi   Movement   (MQM)   and, accordingly, failed to discharge its statutory task with respect to the decision under review.

   Particulars

   a)     The Applicant stated that he and his family were Mohajirs .

   b)     The Applicant also stated that his brothers had joined  MQM.

   c)      The Tribunal accepted that  there  was  evidence  that  there  had   been  violence  in   Karachi against Mohajirs who had an active association with MQM.

   d)     The  Tribunal  was  required  to,  and  did  not,  consider  whether  there  was  a  real  risk   of  the Applicant  being  characterised  by reason  of his brothers'  membership  of MQM  as a Mohajir with an active association with MQM , and of facing violence as a result.

The applicant’s claims

Ground One

1. The essence of the applicant’s complaint under this ground is that whilst the Tribunal correctly identified the forward-looking test, it failed to apply it.  The first respondent agrees with the characterisation of the test but says that the Tribunal correctly applied the test.

2. At paragraphs 125 and 126 of the Tribunal decision, the Tribunal accepted that the applicant had previously paid extortion money to the Taliban and found that there was a real chance that the applicant would reopen his business and continue to pay extortion money. The Tribunal accepted that the Taliban has a presence in Karachi and that it engages in various criminal activities and that a business owner who refused to pay extortion money would face a risk of significant harm.

3. The applicant’s counsel argues that the real issue is the risk of harm if the applicant does not meet the extortion demands and that the Tribunal failed to consider this. Instead the Tribunal simply relied on the applicant’s past conduct as being the sole basis for the Tribunal finding that he would not be at risk of harm, without actively engaging in an enquiry as to the future risk to the applicant.

4. She argues that it is apparent from the Tribunal decision that the focus was on the past and that the applicant did refer to difficulties they experienced in opening his business again. At pages 14 and 15 of the transcript the applicant referred to the fact that the profits were relevant to the amount of money the Taliban would extort. If the applicant does not open his business if he returns he would not face extortion. The Tribunal should have turned its mind to the issue of what would happen if he reopened his business and his ability to pay protection money in the future.

5. The first respondent’s counsel argues that there is no dispute between the parties that the Tribunal found that it was likely that the applicant would reopen his business upon his return to Pakistan.  That is clear from paragraph 125 of the Tribunal’s reasons. He says a fair reading of the Tribunal’s decision shows that it did turn its mind to what would happen in future.

6. Members of the High Court discussed the real chance test at some length in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. I will not repeat their discussion here. It is certainly clear that a person may have a well-founded fear of harm even where there is less than 50 percent (or lower) chance of being persecuted.

7. In S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 McHugh and Kirby JJ state at paragraph 58:

   … whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future .  But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive.  History is a guide, not a determinant.

8. It is clear when reading paragraph 127 of the decision that in considering the fact that the applicant paid protection money in the past to avoid harm that the Tribunal did turn its mind to the future. It found that it was likely that the applicant would pay protection money in the future. At paragraph 33 the Tribunal referred to the applicant’s evidence that the amount businesses had to be paid depended on the profits the businesses made. The sentence beginning with the word “given” at paragraph 127 is just a statement of the evidence. It is implicit in the finding that follows that the applicant will pay extortion money in the future that the Tribunal did consider the future circumstances. The Tribunal did turn its mind to the applicant’s future ability to pay in the event he reopens his business.

9. Ground one is not made out.

Ground Two

1. Grounds two complains that the Tribunal failed to deal with the claim that arose on the material although it was not specifically articulated but which clearly arose of the material. In his written submissions the first respondent refers to the well-known authorities including Htun v Minister for Immigration (2001) 194 ALR 244 which state that the Tribunal must consider each claim raised by the applicant.

2. At page 50 of the transcript the Tribunal discussed the Mohajirs ethnic group. The Tribunal was aware that the applicant and his family were members of that group. The Tribunal was also aware that the applicant’s brothers were members of the MQM. The applicant says that the claim which arises is the consideration of whether or not by reason of the applicant’s brothers being Moahajirs who are members of the MQM that the applicant would be imputed to have an active association with the MQM as distinct from whether or not in fact had an association with them. It should be noted that the applicant did not claim to have an association with the MQM.

3. The applicant’s counsel argues that the Tribunal itself referred to the country information that establishes that individuals are at risk of harm because of association with the MQM.

4. She relied on paragraph 58 of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”) and sought to distinguish Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (“Dranichnikov”).

5. The Court said at paragraph 58 of NABE (no. 2):

   The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at  196  per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

6. The first respondent’s counsel drew the Court’s attention to paragraph 67 and 68 of NABE (No. 2) which are as follows:

   The way in which the claim of persecution by PLOTE was formulated before the Tribunal was not a model of clarity. In his letter of 18 September 2001 to the Tribunal, accompanying the application for review, the appellant’s migration agent referred to persecution of the appellant by “the authorities and the anti-LTTE groups”. He also made express reference to the appellant’s detention by the PLOTE and the fact that he had been questioned by members of PLOTE about the LTTE. He referred to persecution “by the authorities and other rival groups”. The latter could reasonably be taken in context as including a reference to PLOTE. Nothing was said in the letter specifically about the want of State protection from persecution by PLOTE or other groups. The statement that the appellant feared persecution by the authorities and other rival groups could arguably be seen as carrying that implication. It is however significant that the precise ground of failure to consider an implied claim of want of State protection from PLOTE persecution was not raised in the application for judicial review before Tamberlin J. It was not the subject of any express claim before the Tribunal. It seems to have emerged by way of submission in this second round appellate hearing.

   Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.

7. She says that the claim was squarely raised on the material and that the Tribunal should have considered it but failed to. The applicant made an express claim about his brothers associations with the MQM. There is nothing in the decision records indicate that the Tribunal considers whether or not the applicant would be at risk of harm because of an imputed association with the MQM because of his brothers and that that has led to the Tribunal misconstruing its statutory task and making a jurisdictional error.

8. The applicant also relied on the decision of SZPZJ V Minister for Immigration and Border Protection [2012] FCA 18 and in particular paragraph 62. The respondent says this is merely a standard articulation of the application of NABE. I accept the first respondent’s submissions on this point.

9. This first respondent argues that there is no evidence to suggest that being a Mohajir in itself presented of risk, rather it was being a member of the MQM. He argued that this claim did not arise on the material. In hindsight one could try to piece together claim but that is not what occurred and that there was no substantive clearly articulated claim. He also referred to Dranichnikov and said the same claims arise here. Having considering the material, I accept the first respondent’s submissions that the claim does not arise from the material and in any event it is dealt with by the Tribunal’s finding at paragraph 129 that only an active association with the MQM presents a risk, not simply being a Mohajir.

10. Ground two is not made out.

Costs

1. Both parties sought costs in the sum of $7,206 in the event they were successful and were agreeable to this being dealt with in the judgement rather than having counsel returning further argument when the judgement is handed down. Having been unsuccessful the applicant should pay the first respondent’s costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 17 August 2016