AQG15 v Minister for Immigration

[2017] FCCA 2464

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2464

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal affirming decision of delegate of Minister for Immigration not to grant Protection visa – whether Tribunal properly considered applicant’s claim that he had a well-founded fear of persecution – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant: AQG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1187 of 2015

Judgment of: Judge Manouaridis

Hearing date: 21 September 2016

Date of Last Submission: 21 September 2016

Delivered at: Sydney

Delivered on: 13 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr D McLaren of  MinterEllison

ORDERS

1. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1187 of 2015

AQG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Pakistan, seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. In his application for a Protection visa the applicant claimed he feared harm from extremist organisations because he interrupted a suicide bomber from carrying out an attack, and because the applicant is a Shia and a Mohajir. According to a statement that formed part of his application for a Protection visa,[1] the applicant made the following claims:

   a)Shias are the victims of genocide in Pakistan from extremist “Wahbi” sects, and in particular the groups targeting Karachi called “Tahreek-e-Taliban” (TeT) with links to “Lashkhar-e-Janngvi” (LeJ).

   b)The applicant opened his own business but, once “these groups” found out the applicant was a Shia, the applicant’s “business started to go down”, and he was forced to close his business and commence work as a contractor.

   c)On 5 April 2012 a bomb exploded in Malir Halt, a town that is close to the applicant’s home. After the explosion the applicant noticed a man looking “very suspicious”. The man ran past the applicant and shouted, “move I have a bomb”. The applicant “grabbed” the man and “stopped him”. Before he was taken away by the police the man told the applicant, “you are [d]ead, my people will find you and kill you. Your face is on every tv station you are as good as [d]ead.”

   d)Soon after the attack, the applicant began receiving letters threatening him with death. The writers of the letters said they identified the applicant “from the TV”, they knew where he lived, and they were coming for him. The “Taliban/Wahbis are well connected and can find anyone or do anything that they want. The applicant reported the threats to the police in June 2012, and again in August 2012. After receiving the death threats shots were fired on the applicant on two separate occasions.

   e)After he received the death threats the applicant began to stay at home and was unable to work due to his fear of being killed. In October 2012 the applicant’s employer arranged for the applicant to visit Australia for business. On 26 December 2012, after the applicant arrived in Australia, the applicant’s wife contacted the applicant, and told him there had been shooting every night around their home, and that people were yelling: “I know your husband is not there, we will take you instead”. The applicant’s wife and five daughters implored the applicant not to return to Pakistan, but to seek protection in Australia. The applicant’s daughters are also scared for their safety because on 12 December 2012 a Shia girl was shot and wounded on her way home from school.

   f)The applicant cannot move to any other area of Pakistan because the LeJ and TeT occupy every area of Pakistan, and “their main objective is to kill all Shia”. These groups have lists of people they intend to target, which include lawyers, doctors, police, and people like the applicant “who interfere with their business”. The applicant is also easily identified as a Shia because of his name. The applicant said that “[i]n the past it did not matter whether you were Shia or Sunni as much, but now people are trying to change their names because they will not get work or contracts if they have a Shia sounding name”.

   g)The applicant is well-known in the community as a practising Shia, and he cannot relocate either to Islamabad or Rawalpindi because there are now increased attacks on Shias and because he is a Mohajir. The applicant claims that “Mohajir face their own difficulties in the Punjab state as it is, but being a Shia Mohajir makes it even worse”.

   [1] CB65-69

2. In support of his application for protection, the applicant provided a number of documents including copies of the reports made to police dated 14 June 2012 and 5 August 2012, two untranslated letters containing threats received by the applicant and a news report relating to a suicide bombing on 5 April 2012 and a USB containing a news clip showing a man being put into a police car with a number of individuals, including the applicant, surrounding the police car.[2]

   [2] CB42-64

Before the Tribunal

1. In support of his application for review of the delegate’s decision, the applicant submitted to the Tribunal a further statement.[3] In that statement the applicant provided the following additional information:

   a)Wahabis generate a list of Shia owned businesses and tell other Sunni and Wahabi Muslims not to do business with Shias. The applicant was threatened directly by Wahabis, who said that if the applicant did not close down his business they would burn it down. As it slowly began to make less money the applicant decided to close his business.[4]

   b)The applicant was a member of the Mosque Hussaini Jamia Masjid and the Shia Mosque Management, Safina-E-Imamia Trust, which is near the applicant’s home and has been targeted by LeJ since 1995. The applicant was threatened by LeJ while outside the mosque and was told that the applicant was known to them as his face had been on TV.[5]

   c)The applicant’s wife has since left the family home in fear of her life, and now lives in hiding with the applicant’s children “in other safe places”.[6]

   [3] CB173-186

   [4] CB173

   [5] CB174

   [6] CB175

2. After the hearing before the Tribunal, the applicant submitted a statutory declaration made on 22 October 2014 in which he reiterated his claims for protection and provided further explanations in relation to matters put to him at the hearing before the Tribunal.[7] In that statutory declaration the applicant said that when he left his family in Pakistan “they were safe with extended family”, but as a family of six it was hard for the extended family to care for them, and it was too dangerous for them to stay with family for long because the Taliban may discover them. The Shia community learned of the threat to the applicant’s family and became responsible for providing them with protection, moving them from house to house.

   [7] CB325-327

Tribunal’s reasons

1. The Tribunal was not satisfied that there is a real chance that the applicant would face any hardship amounting to serious harm, including significant economic hardship or denial of access to basic services or capacity to earn a livelihood, where such hardship would threaten his capacity to subsist.[8]

   [8] CB488, [43]

2. The Tribunal did not accept that:[9]

   a)the applicant had played a role in intercepting or apprehending a suicide bomber;

   b)the applicant was identified by the TeT or the LeJ or anyone else as someone who had intercepted the suicide bomber or had played a role in his apprehension;

   c)the applicant had been subjected to daily telephone threats;

   d)the applicant was sent two threatening letters;

   e)shots were fired on the applicant on two separate occasions;

   f)the applicant’s family had been threatened, or that his family had been forced to hide or move around in search of safety; or

   g)the applicant was threatened or abused outside his mosque because the extremists had seen his face on television.

   [9] CB487, [39]

3. The Tribunal did not accept the applicant’s claim he had intercepted a suicide bomber, largely because the Tribunal did not accept that a video clip the applicant submitted substantiated the applicant’s claim. The applicant claimed the video showed the “police taking this man from me and putting him in the police car. You can have it translated the police say to me words to the effect “its ok, you done [sic] a good job, we have him now””.[10] The Tribunal accepted the applicant appears in the footage with a number of other people crowding around a police van and an ambulance as the police transfer an apprehended man from one vehicle to another. The Tribunal, however, found there was nothing in the clip that suggests the applicant had played a role in the apprehension of the suspect, and the clip did not show the police “taking” the suspect from the applicant.[11] The Tribunal noted that a translation of the Urdu commentary contained in the clip did not mention a suicide bomber being apprehended after attempting to flee, and that no dialogue, conversations, or comments are audible except the voice of the reporter. The Tribunal also relied on the absence of any corroborating information about the incident to suggest that a member of the public, let alone the applicant, had been responsible for the apprehension of the suicide bomber. The Tribunal considered it to be reasonable to expect that any intervention of the nature described by the applicant would have been reported by the media.[12]

   [10] CB173

   [11] CB483-484, [27]

   [12] CB483-484, [27]

4. The Tribunal found it implausible given what was shown by the video clip that the applicant started to receive telephone threats later on the day that he intercepted the suicide bomber.[13] The Tribunal considered it “puzzling” that despite the LeJ and TeT being “ruthless” organisations with a “capacity to reach and harm their targets across Pakistan”, and their having knowledge of the applicant’s identity and address, neither group approached the applicant nor went to his home in order to harm him but rather put time and resources into making threatening phone calls to the applicant on a daily basis and sending him letters.[14]

   [13] CB484, [28]

   [14] CB484, [29]

5. The Tribunal did not accept the applicant received two threatening letters from the LeJ. The applicant produced two letters which were translated orally at the hearing. The Tribunal noted, however, that, other than being signed “from LeJ”, nothing in the letters persuasively established they were authored by the LeJ as the applicant claimed.[15] Additionally, the Tribunal had difficulty accepting that an organisation such as LeJ would not follow up on the threats it made in response to a serious offence committed by the applicant against the organisation.[16]

   [15] CB484-485, [31]

   [16] CB485, [31]

6. The Tribunal noted there were significant inconsistencies in the applicant’s evidence regarding his family’s circumstances in Pakistan, and found his evidence to be unreliable and lacking in credibility.[17] Before the delegate the applicant confirmed that his wife, daughters, and mother were living at the family home in Karachi; in his further written statement the applicant claimed that his wife has since left the family home and now lives in hiding with the applicant’s children “in other safe places”; and before the Tribunal the applicant claimed that his mother, wife and children continue to live at the family home and occasionally stay with the applicant’s brothers when they feel threatened.[18]

   [17] CB485, [33]

   [18] CB485, [33]

7. The Tribunal found the applicant’s account of being shot at on two occasions unpersuasive and considered his evidence to support the conclusion that the incidents were “random and unexplained coincidences” rather than planned attacks by the LeJ or TeT.[19] On the applicant’s own evidence both attempted shootings took place while the applicant was riding his motorbike at different locations, with the assailant shooting at the applicant from across the road. The applicant did not claim he was being followed and he was unable to explain how he and the assailants happened to find themselves in the same location at the same time, or why, if the LeJ and TeT knew where the applicant lived, they did not attempt to harm him at home. The Tribunal considered the two letters the applicant wrote to the police asking for help and noted that the letter of 14 June 2012 does not mention his being shot at in April 2012.[20] The Tribunal concluded that the applicant’s evidence of the shootings was unconvincing,[21] and therefore it did not accept that the applicant had been shot at or targeted by the LeJ, TeT, or anybody else for the reasons he claims.[22]

   [19] CB486, [34]

   [20] CB486, [35]

   [21] CB486, [35]

   [22] CB486, [36]

8. The Tribunal considered the applicant's delay in leaving Pakistan following the grant of a business visa to be at odds with his claimed fear of harm.[23] The Tribunal did not accept the applicant’s explanation for the delay, namely that he “could not just get up and leave”,[24] and concluded that, if the applicant had a genuine fear of harm as claimed, he would not have waited as long as he did, residing at the same address and working for the same employer, before leaving Pakistan. The Tribunal also considered the letter provided by the applicant that was purportedly written by a Mr AW, a “[j]unior police inspector” in Pakistan, in support of the applicant’s claim for protection and on the totality of the applicant’s evidence, the Tribunal declined to attach any weight to the letter.[25]

   [23] CB487-488, [37]

   [24] CB488, [37]

   [25] CB488, [38]

9. The Tribunal then considered the applicant’s claims based on his being a Shia. The Tribunal did not accept that the applicant had closed his business because Sunni extremist groups had discovered he was Shia, or because Wahabis had told other Sunni Muslims not to do business with him, or because he had been directly pressured or threatened.[26]

   [26] CB488, [42]

10. The Tribunal also considered the information provided by the applicant regarding violence against Shias in Pakistan.[27] The Tribunal accepted that country information indicates Shias face threats of violence and that there have been attacks on Shias in Karachi and in particular at Shia religious processions and on Shias who are professionals. However in the context of the Shia population constituting 25% of the total number of people in Pakistan and reported attacks on Shias occurring intermittently, the Tribunal found that the applicant’s risk of facing serious harm was remote.[28]

    [27] CB488-489, [45]

    [28] CB489, [46]

11. Further the Tribunal did not accept that the applicant would be targeted because he had a profile of or was identified as a “Shia businessman”.[29] The Tribunal had regard to the evidence of Mr R, who appeared before the Tribunal to provide oral evidence in support of the applicant’s claims.[30] The Tribunal noted that Mr R merely reiterated the applicant’s claims for protection in relation to the applicant’s apprehension of a suicide bomber and of the precarious situation of Shias in Pakistan, and for reasons it had previously provided, the Tribunal was not satisfied the applicant faces a real chance of harm or of being persecuted for reasons of his religion.

    [29] CB489, [46]

    [30] CB489, [47]

12. The Tribunal also considered the applicant’s claim based on his being a Mohajir. The Tribunal noted the applicant had not claimed to have experienced any harm in the past in Karachi because he was a Mohajir. The Tribunal was not satisfied that the applicant faced a real chance of being persecuted for being a Mohajir or a Shia Mohajir if he were to return to Pakistan[31] and so it concluded that the applicant did not satisfy s.36(2)(a) of the Migration Act 1958 (Cth) (Act).[32]

    [31] CB490, [48]

    [32] CB491, [52]

13. For the reasons it had given the Tribunal was not satisfied that the applicant had been harmed in the past or that if he were to return to Pakistan that there is a real chance that he will be subjected to serious harm. The Tribunal did not accept on the evidence before it that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm because of his “claimed encounter with a suicide bomber”, incidents of sectarian violence, the applicant’s Shia faith or for any of the reasons specified in the definition of “torture” in s.5(1) of the Act. Accordingly the Tribunal found the applicant did not satisfy s.36(2)(aa) of the Act.

Grounds of application

1. In his application under the heading “Grounds of application”, the applicant has stated the following (emphasis in original, errors in original):

   1.Article 1A(2) of the Convention relating to the Status of Refugees 1951 (the Convention) states that the term [“]refugee” shall apply to any person who ...

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political

   I am applying for Judicial Review on this legal point as I do not feel that the Review Tribunal has properly considered my case on the grounds of “having a well founded fear”

   2.Due to the recent sever storm on Saturday 25th April 2015 the house in which I am staying suffered water damage and a collapsed ceiling. I have been unable to locate my paper work which was included in my original applications. I am attaching what was saved on a computer. I will be able to continue looking once the room is safe to go into.

   3.Attached is my FULL STATEMENT TO BE ATTACHED TO REFUGEE REVIEW TRIBUNAL marked Attachment 1.

   4.A copy of a Statutory Declaration which was used when extra information was asked for by the Tribunal marked Attachment 2.

   5.Refugee Tribunals decision to affirm and statement – Decision Record marked Attachment 3.

2. It will be seen that although there are five paragraphs, the application contains only one ground of application. The document that is described in paragraph 3 as “Attachment 1” is the document attached to the applicant’s affidavit which he filed with his application for review. That document, in turn, is reproduced in the Court Book at pages 173-186. The document that is described in paragraph 4 as “Attachment 2” is the document attached to the applicant’s affidavit which he filed with his application, and is an unsigned copy of the statutory declaration that is in the Court Book at pages 325-327. And the document described in paragraph 5 of the grounds of application is the Tribunal’s decision record, which is reproduced in the Court Book at pages 479-491.

3. At the hearing before me I invited the applicant, who is not legally represented, to make whatever submissions he wished to make, after which I had the grounds interpreted and asked the applicant whether he wished to make any submissions in relation to those grounds. The applicant stated there is “100% Shia persecution in Pakistan”, and that he had submitted to the Tribunal all the documents in his case. The applicant said he informed the Tribunal that his case was shown on a television channel. By that the applicant meant that there was an attack in which he assisted in the apprehension of an attempted suicide bomber, that he was filmed doing so, and that he provided a USB of the clip to the Tribunal. The applicant also said that he travelled to Europe on business, and had there been any trouble he would have applied for protection in Europe. He did not apply for protection in Europe because there had been no problems at that time. When problems arose he was told that Shias can claim protection in Australia. The applicant also said the Tribunal did not investigate his case properly. He said the Tribunal made no enquiries of people in Pakistan, and in particular the police, who could have verified the information the applicant had provided to the Tribunal.

1. In relation to ground 1 of the application, the applicant said that he fears persecution and that his life is in danger. The applicant said he has five daughters and they have suggested he should not return to Pakistan because he will definitely be killed. He also said the Taliban is targeting Christians and Shias, and that the circumstances in Pakistan are worse at the moment. The applicant made no submissions in relation to the other parts of his application.

2. Much of what the applicant said before me relates to his asserted fear of persecution in Pakistan. That does not disclose any jurisdictional error by the Tribunal. It was for the Tribunal to assess the applicant’s claims for protection. The Court’s jurisdiction is limited to considering whether, on the grounds stated in an application for review, the Tribunal has made any jurisdictional error.

3. I do not accept the applicant’s submission that the Tribunal did not properly consider the applicant’s claims because the Tribunal made no inquiries of people in Pakistan to verify the applicant’s claims. The Tribunal has no general duty to investigate matters that are raised by an applicant for review. At most the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained.[33] There is nothing in the material before me that could reasonably suggest the existence of the matters on which the applicant relied could easily have been ascertained by the Tribunal. I am otherwise satisfied the Tribunal did properly consider the applicant’s claims. The Tribunal was aware of the claims the applicant made, it engaged with the claims the applicant had made by asking the applicant questions about those claims, it considered each of the applicant’s claims and concluded, for reasons that were reasonably open to it, to affirm the decision of the delegate not to grant the applicant a Protection visa.

   [33] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

4. The ground stated in the applicant’s application does not reveal any jurisdictional error. The applicant does not identify the facts and matters on which he relies for claiming the Tribunal did not properly consider whether the applicant had a well-founded fear of persecution. There is nothing in the Tribunal’s reasons to suggest that it did not understand or that it misapplied relevant principles concerning whether a person has a well-founded fear of persecution. Although the Tribunal rejected the essential factual premises of the applicant’s claims, the Tribunal considered whether on the basis of the claims it did accept the applicant has a well-founded fear of persecution. In particular, the Tribunal considered whether the applicant has a well-founded fear of persecution because he is Shia. After referring to country information the Tribunal concluded that although that information indicated there have been attacks on Shias, and in particular at Shia religious processions and on Shias who are professionals, the Tribunal found the applicant’s risk of facing serious harm “is remote”.[34]

   [34] CB489, [46]

Conclusion and disposition

1. The applicant has not demonstrated the Tribunal made any jurisdictional error. I propose, therefore, to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manouaridis

Associate: 

Date:  13 October 2017