AMQ18 v Minister for Home Affairs

[2019] FCCA 1366

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1366

Catchwords:
MIGRATION – Unreasonable exercise of discretion – whether the Tribunal should have called the Applicant’s witness – whether the Tribunal’s refusal to call the Applicant’s witness was a jurisdictional error – whether the Tribunal failed to consider the Applicant’s country information – no unreasonable exercise of discretion – Tribunal considered Applicant’s country information – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 426 and 476.

Cases cited:

Minister for Immigration and Border Protections v WZARH [2015] HCA 40.
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1.

Minister for Immigration and Multicultural and Indigenous Affairs vMaltsin [2005] FCAFC 118.
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574.
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.

Applicant: AMQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 279 of 2018

Judgment of: Judge McNab

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Melbourne

Delivered on: 23 May 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Yuile

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondent: Mr T. Goodwin

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 5 February 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 279 of 2018

AMQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed 5 February 2018 and amended 14 November 2018, the Applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal”).

2. The decision of the Tribunal, made 8 January 2018, affirmed a decision of a delegate of the First Respondent (“the Delegate”) to refuse the Applicant a grant of a Protection (Class XA) visa (“Visa”).

Background

1. The Applicant is a citizen of Pakistan and is a Shia Muslim. He arrived in Australia in June 2012 on a Student (subclass 572) visa which was cancelled on 16 January 2014. He applied for the Visa on 18 August 2015.

2. On 8 October 2015, the Delegate refused to grant the Visa. The Applicant sought a review of this decision. The Tribunal affirmed the Delegate’s decision on 4 January 2016. This Tribunal (the “previously constituted Tribunal”) was a differently constituted than the Tribunal that is the subject of this application.

3. On 5 October 2017, the previously constituted Tribunal’s decision was set aside by the Federal Circuit Court and the matter was remitted for rehearing before the Tribunal.

4. On 11 December 2017, the Applicant appeared before the Tribunal to give oral evidence and provide submissions.

5. On 8 January 2018, the Tribunal made a decision to affirm the decision of the Delegate and refuse the Applicant the Visa.

Claims of the Applicant

1. The Applicant makes the following claims:

   a)to fear harm from Sunni Muslim extremists due to his Shia religion;

   b)that he was expelled from school in sixth grade and forced to stand guard outside the Soldier Bazaar in Karachi, Pakistan, with a gun from 2009 to 2011;

   c)that he stopped guarding the Soldier Bazaar after his friend Walid was shot and killed by Wahhabis in 2011;

   d)that his refusal to guard the Soldier Bazaar caused his father to beat him, lock him up and withhold food from him;

   e)that his father tried to force the Applicant to join a Shia militant group; and

   f)the Applicant’s mother and uncle arranged for the Applicant to apply for a student visa without knowledge of his father in order to escape Pakistan.

Tribunal findings

1. The Tribunal found several of the Applicant’s claims to be inconsistent and dubious. Consequently, the Tribunal found that the Applicant lacked credibility.

Finding 1 – Providence of the Applicant father’s financial documents

1. The Applicant alleged that his father was unaware that the Applicant had applied for a student visa in Australia. The Tribunal did not accept this claim as the Applicant had provided financial statements from his father as part of the application and, initially, denied that the documents had even been submitted.

2. The Tribunal did not accept the explanations provided by the Applicant that he had stolen these documents. The Tribunal also did not accept the Applicant’s later claim that his mother had obtained them by telling his father they were for a job she was applying for.

3. The Tribunal considered, and refused, the Applicant’s request to have his mother give evidence by telephone in support of this claim, as the Tribunal would give the mother’s evidence little weight in light of their close relationship.

Finding 2 – Applicant’s allegations of father’s violence

1. The Tribunal did not accept the Applicant’s claims to fear his father. The Tribunal noted that this fear was inconsistent with what the Applicant stated in his visa application in 2012 (extracted as is):

   My family supported me always in each and every step of my life’s decision. They are encouraging me and supporting me for the accomplishment of my standard education from Australia ... I have a charming family and I can’t imagine to spend my life without their blessings. After completion of my studies I should return to my beautiful country for the sake of brightest future as I have already described which will be ahead of me and support my great family.

2. The Applicant alleged that this statement was developed by his migration agent. The Tribunal did not accept this contention as the application was signed by the Applicant, meaning that at minimum, the Applicant had knowledge of the contents of the application.

Finding 3 – Shia militant groups

1. The Tribunal found the Applicant’s evidence about the Shia militant group his father tried to force him to join to be vague and contradictory. At [48] of the Tribunal’s decision record (‘decision record’):

   When asked about this Shia militant group at the first Tribunal hearing, the applicant said the group didn’t have a name because they didn’t want to show themselves. At the second Tribunal hearing the applicant named three Shia militant groups, stating that every time there was an attack on Shias they would get together and counter-attack.

   Further, the Tribunal noted that the Delegate’s decision does not record the Applicant mentioning being beaten by Shia militant groups or his father and the Applicant’s evidence about these events was considered “vague”.

Finding 4 – delay in making an Application

1. The Tribunal had further doubts about the truthfulness of the Applicant’s claims due to the Applicant’s delay in making this Visa application. At [51] of the decision record, the Tribunal noted that it had “very grave concerns about the Applicant’s credibility” and did not accept that the Applicant’s claims to be unaware or naïve regarding his Visa situation were truthful or explained the delay in making the application.

Finding 5 – claims of past harm in Karachi

1. The Tribunal was not satisfied as to the Applicant’s claim that he guarded the Soldier Bazaar and that he was present when his friend, Walid, was killed during guard duty.

2. The Tribunal noted inconsistencies in the Applicant’s account. Firstly, in his original application, he did not mention he performed guard duty for the Shia community. Secondly, the Applicant stated he was present during a rally in Karachi when his friends were killed, which made him fearful.

3. The Tribunal also did not believe that the Applicant had personally escaped “six or seven bomb blasts […] including being present at the assassination of former Prime Minister Benazir Bhutto’: decision record [61].

Finding 6 – risk of future harm as a Shia in Karachi

1. The Tribunal relied on country information supplied by the Department of Foreign Affairs and Trade (“DFAT”) that indicated that “most Shias in Pakistan face a low risk of sectarian violence” and that sectarian violence has “fallen significantly in recent years because of the 2015 National Action Plan”: decision record [66]. The Tribunal found this information convincing, finding that “the chance that the Applicant would be targeted or otherwise caught up in a sectarian attack in Karachi for reasons of his Shia religion is remote and merely speculative: decision record [71].

Finding 7 – discrimination against Shias in Pakistan

1. Relying on the country information supplied by DFAT, the Tribunal determined that the Applicant may suffer a “low level” of discrimination in Pakistan: decision record [74]. This “low level” was deemed to be insufficient to constitute persecution.

Finding 8 – fear of harm from political parties in Karachi

1. The Applicant, at the hearing before the Tribunal, claimed to fear harm from the political parties of MQM, the Awami National League and the People’s Parties in Karachi. The Tribunal questioned whether the Applicant had any problems with these parties and the Applicant raised general concerns and noted that he had not been individually affected.

2. As the Applicant had not been individually affected, the Tribunal did not believe that there was a real chance that the Applicant would be targeted upon returning to Pakistan.

Summary

1. The Tribunal rejected the Applicant’s claims on the basis that the Applicant did not face a real chance of serious harm in Pakistan.

2. Finding that Australia had no obligations under s 36(2)(a) of the Act, the Tribunal considered the complementary protection of s 36(2)(aa) of the Act. For the reasons that sustained the finding under s 36(2)(a) of the Act, the Tribunal did not believe that the Applicant faced a real risk of harm if returned to Pakistan.

Grounds of review

1. The Applicant provides the following grounds of review via amended application filed 14 November 2018:

   1.The Tribunal erred by unreasonably failing to call the Applicant’s mother to give evidence in the hearing. The failure to take that evidence was an unreasonable exercise of the Tribunal’s discretion under s 426 of the Migration Act 1958 (Cth).

   2.The Tribunal erred by failing properly to consider country information provided by the Applicant. This amounted to a failure to give proper, genuine and realistic consideration to the material.

Submissions of the parties

The Applicant’s Submissions:

Ground 1 – failure to call the mother

1. The Applicant submits that while the Tribunal does not have to accede to a request to have a particular witness give evidence, the Tribunal must exercise its discretion reasonably. The Applicant relies on the proposition in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin at [38]:

   The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness, […] the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal

2. The Applicant submitted this is a case where discretion was exercised unreasonably. The essence of the Applicant’s argument is that it is unreasonable not to call a person who could give important and unique evidence. Put another way, the Applicant’s submissions at [12]-[14] state:

   The refusal of the Tribunal to take evidence from the applicant’s mother in this case was unreasonable. The Tribunal rejected the applicant’s claims that his father would harm him or force him to fight with a militant group. Central to the rejection of these claims was the Tribunal’s view of documents submitted by the applicant in support of his earlier student visa, and in particular its rejection of the applicant’s explanation about how they were obtained.

   The applicant’s mother and her explanation of events was integral to the applicant’s claims about the documents. Her credibility was therefore directly relevant to the applicant’s case and his own credibility on the point of the documents connected with the applicant’s student visa.

   In addition, given that the source of claimed harm in this case was the applicant’s father and his connections with local militia groups, the applicant’s mother was in an ideal position to provide evidence about that claim.

3. The Applicant further alleges that using the Applicant mother’s previous evidence was insufficient. This is despite the Tribunal having found that her previous evidence was inconsistent with evidence in the new hearing. The Applicant relies on Minister for Immigration and Border Protections v WZARH [2015] HCA 40 at [41] for the proposition that the Applicant’s mother should have been called to give oral evidence and questioned at the hearing before the Tribunal.

4. The Applicant further submits that the purpose s 426 is to allow a witnesses to give evidence where a statement would be “inadequate or unsatisfactory”[1] and where “the taking of oral evidence would be likely to assist the Tribunal to determine the reliability or credibility of witnesses who had provided written statements”.[2] The Applicant submits that the mother is in a unique position to give insight into the Applicant’s case – as she is the only party other than the father who could confirm or rebut the Applicant’s claims.

   [1] SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 [52].

   [2] SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 [52]

Ground 2 – failure to consider Applicant’s country information

1. The Applicant submits that the Tribunal failed to properly consider the country information provided by the Applicant. While it is conceded that weight and choice of country information is a matter for the Tribunal, the Tribunal is still required to engage in an active intellectual process with any material provided to it. The Applicant submits that the Tribunal’s reasons show that the Tribunal did not actively engage with the material presented. The Applicant submits that as the Tribunal’s reasons only refer to 1 incident contained in the Applicant’s claim and does not consider the multitude of other incidents mentioned, the Tribunal “ignored or overlooked the information” about those matters: Applicant’s submissions [32].

2. The Applicant submits that by almost exclusively referencing the DFAT Report material, the Tribunal demonstrates “more than simply a preference by the Tribunal for one lot of material over another”: Applicant’s submissions [34]. The Applicant further submits that, in conjunction with not mentioning the most recent attacks referred to in the Applicant’s country information, the Tribunal failed to actively engage and consider the country information provided by the Applicant and to perform the Tribunal’s statutory function.

The Minister’s submissions

Ground 1 – Failure to call the mother

1. The Minister submits that the Tribunal did not err in refusing to take oral evidence from the Applicant’s mother. The Minister notes that the Tribunal had broad concerns regarding the Applicant’s credibility and that these concerns were not limited to how the Applicant claims to have come into possession of his father’s financial statements. Further, should the mother be called, her evidence would only corroborate the most recent version given by the Applicant as to how he came into possession of his father’s financial documents. Accordingly, she “would not explain away the various explanations the Applicant gave about how the financial records were submitted”: the Minister’s submissions filed 27 November 2018 [12] (‘Minister’s submissions’).

2. The Minister put that it is not unreasonable for the Tribunal not to question a witness when it is unlikely that the witness could allay the Tribunal’s concerns: Minister’s submissions [12].

3. The Minister further submits that the Tribunal provided an intelligible justification for the refusal rather than dismissing the application capriciously: Minister’s submissions [12].

Ground 2 – failure to consider Applicant’s country information

1. The Minister submits that while ignoring a submission may result in jurisdictional error, no error is demonstrated by the Tribunal failing to refer to the material referred to by the Applicant in its decision record. It is said that a failure to refer to a piece of evidence does not necessarily indicate that the evidence was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [31].

2. At [16] of the Minister’s submissions, it is put that the Tribunal did have sufficient regard to the submissions of the Applicant as:

   a)the Tribunal referred to the written submissions in the decision;

   b)the Tribunal noted “the evidence of further attacks in other parts of Pakistan contained in the submissions of the Applicant’s representative”, with the plural indicating that the Tribunal considered the content of the Applicant’s submissions and did not examine evidence of only a single attack as alleged by the Applicant;

   c)it is explicable that the Tribunal did not refer to two other attacks noted by the Applicant as these did not occur in the Applicant’s home city of Karachi; and

   d)the information provided by the Applicant referred to attacks outside of Karachi, while the Tribunal was concerned of the potential harm to the Applicant as a Shia in Karachi.

3. The Minister submits that even if the Court finds that the Tribunal did ignore relevant submissions, this error was not jurisdictional because the material did not relate to the Applicant’s claims to fear harm as a Shia in Karachi specifically.

Consideration

Ground 1 – failure to call the applicant’s mother

1. The Tribunal must give genuine consideration to the Applicant’s wish to have his mother called to give oral evidence: see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [23] and Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38].

2. In my view, the Tribunal’s decision not to call the mother was not an unreasonable failure to exercise jurisdiction under s 426 of the Act. The evidence proposed to be given by the mother was in relation to financial documents obtained for the student visa. That evidence, even if accepted, did not deal with the other separate reasons why the Tribunal did not accept the Applicant’s claims as credible. The Applicant mother’s evidence would not address:

   a)the fact that the Applicant’s claims that his father beat him were inconsistent with the Applicant’s statement in his student Visa application: decision record [45]–[47];

   b)the Applicant’s delay of more than 3 years before making the protective Visa application: decision record [51]; and

   c)the fact that the Applicant’s evidence about the Shia militia group that his father had allegedly forced him to join was vague and contradictory: decision record [48]–[50].

3. The findings of the Tribunal in relation to those matters were unlikely to be affected by the evidence of the mother. The Tribunal’s reasons confirm this, at [42] of the decision record:

   I have considered the applicant’s suggestion that I contact his mother by telephone in Pakistan to confirm this most recent account of how his father’s financial documents were obtained, however I have decided not to do so. While I accept his mother’s evidence will back up the Applicant’s account of how she obtained these documents, I would give little weight to such evidence given the close relationship between the parties and my very serious concerns about the Applicant’s credibility as set out in these reasons. I note the applicant mother gave oral evidence to the Tribunal at the first hearing about matters concerning the applicant’s claims and I have taken her evidence into account.

1. Accordingly, it was reasonable for the Tribunal to consider and reject the Applicant’s application. On that basis, ground one is not successful.

Ground 2 – failure to consider country information

1. The applicant claimed that he would be harmed by militias in Karachi as a Shia Muslim. This claim was considered at [62]–[71] of the decision record. The Tribunal made extensive references to DFAT’s country information when considering the Applicant’s chance of being targeted or involved in a sectarian attack in Karachi due to being a Shia Muslim before finding that the chance of harm was remote and merely speculative: decision record [71].

2. It can be inferred from the Tribunal’s decision that the Tribunal considered the written submissions put by the Applicant regarding the situation Pakistan. At [70] of the decision record, the Tribunal referred to the Applicant’s country information:

   I note the evidence of further attacks in other parts of Pakistan contained in the submissions of the applicant’s representative – an attack on a Sufi shrine in Sehwan, Sindh province on 16 February 2017

   I do note that at [4] of the decision record the Tribunal does not refer to the Applicant’s country information. This, however, appears to indicate a drafting issue rather than a lack of consideration given the express mention of the country information at [70] of the decision record.

3. The Applicant has properly acknowledged that the choice of, and the weight given to, country information is a matter for the Tribunal (citing amongst others NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).

4. It is apparent that the Tribunal’s decision does not reference all attacks set out in the Applicant’s country information. This is explicable as the Tribunal focused on the chance of harm in Karachi whereas the country information provided by the Applicant had a national focus. The Tribunal relied upon DFAT’s information as it pertained to the issue to be determined: the Applicant’s chance of harm in Karachi. The Tribunal’s focus on the chance of harm in Karachi does not mean the Tribunal did not consider the Applicant’s country information, rather, the country information supplied by the Applicant mat not have affected the decision to be made.

5. For these reasons this ground will be dismissed

Conclusion

1. The application will be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 23 May 2019