ATC15 v Minister for Immigration

[2015] FCCA 2589

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATC15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2589

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether Tribunal erred in making adverse credit findings against applicants – whether Tribunal erred in not allowing applicant’s opportunity to respond to those adverse findings – whether delay in lodging visa application a relevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 476

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

First Applicant: ATC15

Second Applicant: ATD15

Third Applicant: ATE15

Fourth Applicant: ATF15

Fifth Applicant: ATG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 206 of 2015

Judgment of: Judge Street

Hearing date: 18 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Perth

Delivered on: 18 September 2015

REPRESENTATION

Solicitors for the Applicant:

Ms S Hemachandra

Fourlion Legal Pty Ltd

Counsel for the Respondents: Mr RJS French

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 206 of 2015

ATC15

First Applicant

ATD15

Second Applicant

ATE15

Third Applicant

ATF15

Fourth Applicant

ATG15

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 April 2015 affirming a decision of the delegate not to grant the applicants’ Protection (Class XA) visas. The second applicant arrived in Australia on 28 September 2009 as the holder of a student visa and briefly returned to Pakistan on 2 August 2011 until 28 September 2011. The first applicant and her three children joined the second applicant in Australia as dependants on 9 July 2012.

2. The second applicant had his student visa cancelled on 6 March 2013.  It was after that cancellation that the first applicant lodged her application for protection on 15 March 2013.  Without repeating the particulars, there are four substantial grounds identified in the applicant, and they are as follows:

   1. Failure to Afford Procedural Fairness

   …

   2. Failing to Take into Account Relevant Considerations

   …

   3. Taking into Account Irrelevant Considerations

   …

   4. The Decision was Unreasonable/Illogical/Irrational

   …

3. Counsel for the applicants also advanced an allegation of non-compliance with either procedural fairness or s.424A in respect of an alleged threatening letter to the first applicant at page 136, alleged reports police and alleged newspaper reports and drew attention to related findings in relation to that information. The alleged threating letter was given little weight by the Tribunal at para.55. In relation to the reports to police the Tribunal raised with the first applicant that the reports were not independent proof of the events asserted at para.41 and para.62. The incident in the newspaper report concerned the first applicant’s brother and the Tribunal gave little weight to it as evidence at para.58.

4. The Tribunal found the applicants to be citizens of Pakistan and assessed the claims as against that country.  The applicants were invited in accordance with the statutory regime to attend a hearing before the Tribunal, which occurred on 14 November 2014, where the applicants gave evidence and presented arguments with the assistance of an interpreter as well as being represented by their migration agent. The applicants had a further hearing on 18 December 2014, at which again the applicants were represented by their migration agent. 

5. The Tribunal identified the applicants’ migration history and identified concerns in relation to the first applicant’s evidence.  The Tribunal identified the applicants’ claimed fear of persecution due to alleged three alleged incidents in 2012 that the delegate found was vague and lacking in detail as well as being the subject of evasiveness, inconsistencies and lack of plausibility.  The first applicant claimed fear of persecution due to the second applicant’s father being involved allegedly in the hunting of criminals and setting up something called Hunter Force. The first applicant claimed fear of drug criminals caught and now released because of the involvement of her father-in-law and because of her husband, the second applicant’s assistance to his father’s activities in the imprisonment of those persons. The delegate did not accept as plausible the targeting of the applicant because of the activities of the second applicant’s. The delegate did not accept that the applicants had a profile that would be of interest to drug dealers and that there was no risk of harm if returned to Pakistan. The Tribunal found that the claims involving the first applicant’s father –in law had been invented for the purposes of the protection claim. Relevantly, the Tribunal found:

   47. …However the Tribunal does not accept that either the organisation or the first named applicant's father-in-law had a high profile in Lahore or any profile whatsoever in Pakistan outside of Lahore. The Tribunal finds that if the organisation or the applicant's father-in-law had a high profile in Lahore or operated and was known outside of Lahore there would be some mention of their activities found during the search of organisations in Pakistan involved in drug awareness or working against drugs, particularly as the organisations had been in existence for around 20 years.

   …

   50. The Tribunal does not accept that the first named applicant's father-in-law was harmed because of his involvement with the organisation. The Tribunal does not accept that he was ever involved in assisting the police or narcotics agency arrest people involved in the drug industry…

   …

   52. The Tribunal does not accept based on the very limited information provided, mainly a claim by the applicants that these incidents occurred, that these incidents in 1993 and in 2004 ever occurred. The Tribunal does not accept the submission that because the father-in-law had a bodyguard every time he left the house that he was safe or that that simply because he had a bodyguard meant that the father-in-law was protected. The Tribunal finds that these claimed incidents of harm to the father-in-law have been concocted as a result of the delegate's finding that the second named applicant and his father in 20 years with the organisation have never been threatened or harmed in anyway.

   …

   54. The Tribunal does not accept as plausible that the first named applicant's father-in-law was involved in assisting the police capture significant figures in the drug world. The Tribunal does not accept as plausible the applicants' claims that the police used him in “sting” operations to capture significant people in the drug industry. While the Tribunal accepts the first named applicant's father-in-law set up a welfare organisation based in Lahore, the Tribunal does not accept that it had a profile as anything other than a welfare agency and does not accept that it was involved in hunting criminals. The Tribunal does not accept as plausible that the second named applicant's father would be instrumental in assisting the police capture significant figures in the drug industry without the family knowing something about his actions. The Tribunal does not accept as plausible that he would not have told his family something that may eventually result in the family being at risk. The Tribunal does not accept as plausible that these same significant people would wait until their release from prison to start taking action for their revenge on the person they believe assisted in their arrest or members of their family. The Tribunal finds that the claims the first named applicant's father-in-law was involved in hunting criminals and assisting the police to capture significant drug criminals to have been invented for the purposes of a protection claim.

   55. The Tribunal gives little weight to the letter claimed to have been sent to the first named applicant stating “because of you people we suffered a lot and now we are out of jail you and your family will face the consequences” as evidence that the family are being targeted because of actions of the first named applicant's father-in-law in assisting in the arrest of drug barons, The Tribunal does not accept as plausible the claim that after waiting a significant period to be released from jail to exact their revenge, these people would leave a note threatening action in the future. The Tribunal finds that the note provides nothing further than the statement and in itself is not sufficient to be accepted as independent evidence of a threat against the applicants. The Tribunal is not satisfied on the basis of the evidence provided that the letter is from the person or persons it is purported to be from.

   56. …The Tribunal does not accept persons interested in harming the family would simply keep knocking at the front door, going away when it was not answered to return on a later day and repeat their actions.

   57. …The Tribunal does not accept that persons wishing to harm the first named applicant and her family would simply shoot at the house and drive away.

   …

   59. The Tribunal does not accept as plausible that a person or group wishing to harm any of the applicants would over a 12 month period knock three or four times on the front door of their home issuing threats and leave a written threatening note. The Tribunal finds that if this person or group was so intent on harming any of the applicants they had opportunities to do and would not be bothered to leave a threatening note or to simply knock on the front door and make threats. The Tribunal also does not accept as plausible that these same significant people would wait until their release from prison to take revenge on the person they believe assisted in their arrest or members of their family.

   60. The Tribunal found the first named applicant's recounting of the various incidents in Pakistan vague and lacking in detail, even taking into account her memory difficulties. After considering the evidence provided, the Tribunal does not accept that the first named applicant, her children or her brother were targeted by any person for harm in Pakistan for any reason.

   61. The Tribunal found there to be inconsistencies in the first named applicant's account of the first incident in that she told the Tribunal that they tried to kidnap her first yet the letter states that the men tried to kidnap her son first and he cried out drawing the attention of others around them. When these inconsistencies were pointed out to her she denied that there was anything different and her husband indicated that she had memory difficulties as indicated in the medical report provided to the Tribunal. Based on the inconsistencies, vagueness and lack of detail in the evidence provided by the first named applicant, the Tribunal does not accept that there was an attempt to kidnap the first named applicant and her son at a shopping centre.

   62. As raised with the applicants, the Tribunal does not accept the letters provided as evidence that the events happened. The documents are not police reports but simply letters from the first named applicant and her brother addressed to the police station recounting their stories of the claimed incidents. The Tribunal notes that they appear to have been stamped by a police station but does not accept the letters as official accounts of the incidents referred to. The Tribunal does not accept the letters as independent evidence as they are merely self-reporting of the claimed incidents to the police.

   …

   65. Both the first and second named applicant told the Tribunal that the second named applicant had provided documents, including the police reports to his counsellor at his education institution. The first named applicant indicates in her letter to the Tribunal that this was in August 2012. Their representative told the Tribunal that in early September 2012 they started giving him documents. Yet they did not apply for protection until March 2013, after the second named applicant's student visa was cancelled. The Tribunal considers that if the applicants' were so fearful of returning to Pakistan, they would have taken steps to lodge their application for protection at a much earlier stage. The Tribunal finds that the applicants' delay in applying for protection undermines their credibility in fearing harm on return to Pakistan.

   66. …The Tribunal has considered the evidence of the applicants that the organisation was involved in street parades, publishing a magazine and other public activities but finds that despite these activities it has a low profile such that a search could find no mention of it or its activities over the years through various sources.

   …

   69. The Tribunal finds that the first, second, third and fourth named applicants do not have any sort of profile within Lahore or Pakistan that would cause them to be of adverse interest to any group, drug dealer, drug baron, or any person or group associated with illegal mugs or with any terrorist or extremist organisation. The Tribunal does not accept that they have been sent a threatening letter or have been threatened in any way or have been harmed or targeted for harm in any way. The Tribunal does not consider that any of the applicants have a profile that would cause them to be of interest to any person or group such that their whereabouts would be sought.

   70. The Tribunal finds that there is no real chance that the first, second, third and fourth named applicants face harm should they return to Pakistan now or in the reasonably foreseeable future from any group, drug dealer, drug baron, or any person or group associated with illegal drugs or with any terrorist or extremist organisation because of their work for and/or association with Al Muslim Welfare Organization, Al Muslim Anti-Narcotics Organization or Pakistan Anti-Drug Syndicate (PAK Anti-Drug Syndicate) and/or with the first named applicant's father-in-law.

   71. The applicants provided evidence that they fear harm because of various acts of terrorism, the targeting of people and the general lack of security in Pakistan. The Tribunal acknowledges that the applicant fears harm because of the ongoing generalised/sectarian violence in Pakistan. The Tribunal acknowledges the information provided by the applicants that supports their fear as to the generalised violence in Pakistan and finds that generalised violence in Pakistan as a whole is rampant and indiscriminate and indicates that the various religious, political and militant groups are regularly involved in generalised violence. In respect of the threat the applicants may face from the various militia, ethnic, religious and political groups, the Tribunal finds the applicants would not be in a position different from the general population of Pakistan, that is, that the violence faced by the applicants is the same as that faced by all members of the population. The Tribunal finds that the violence referred to by the applicants is not harm involving “systematic and discriminatory conduct” towards them but indiscriminate violence faced by all members of the population. Therefore pursuant to s91R(l)(c) of the Act, the Tribunal finds that Article 1A(2) of the Convention does not apply to any such harm.

   …

   72. The Tribunal has considered the claims of the applicants individually and cumulatively. For the above reasons, the Tribunal finds the applicants faced no serious harm in the past. The Tribunal is not satisfied the applicants face a real chance of serious harm from any group, drug dealer, drug baron, or any person or group associated with illegal drugs or with any terrorist or extremist organisation because of their work for and/or association with Al Muslim Welfare Organization, Al Muslim Anti-Narcotics Organization or Pakistan Anti-Drug Syndicate (PAK Anti-Drug Syndicate) and/or with the first named applicant's father-in-law now or in the reasonably foreseeable future. The Tribunal is not satisfied the applicants have a well-founded fear of persecution for any Convention reason or combination of reasons, if they return to Pakistan now or in the reasonably foreseeable future. Therefore they do not satisfy the requirements of s.36(2)(a).

6. The Tribunal then turned to the issue of complementary protection and relevantly found:

   76. In relation to the balance of the applicants' claims, the Tribunal found above the applicants did not have a well-founded fear of persecution on any ground as they do not face a real chance of serious harm. Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicants face a real risk of significant harm.

   77. The Tribunal therefore considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk the applicants will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out: torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the first, second, third and fourth named applicants do not meet the requirements of s.36(2)(aa).

   …

   78. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

7. Counsel for the applicant presented very detailed submissions, which alleged the Tribunal mistakenly referred to an alleged 12-month period of doorknocking conduct said to be threatening of the applicants in paras 56 and 59 in circumstances where the evidence was it was a two-month period of alleged threatening conduct. It is clear from para.39 that the Tribunal was aware that the door knocking only occupied 2 months. The alleged police report at CB 28 dated 15 June 2012 refers to 2 months door knocking. In any event I do not regard that as an error of 12 rather than 2 months as giving rise to any materiality in the reasoning of the Tribunal in rejecting the credit of the first applicant or in rejecting the applicants’ claims. 

8. Counsel for the applicant sought to advance that the delay that the Tribunal focused on in the lodging of a protection application could in some way be explained away by reference to the conduct of the migration agent and drew attention to a passage in the transcript where the migration agent suggested that there had been the starting of giving of documents by the applicants to the agent on 4 September 2012. I do not accept that argument. The delay was a finding of fact that was open to the Tribunal on the material before the Tribunal. The criticism in this regard is an impermissible challenge to the findings of fact. 

9. Further I do not accept that there was any lack of logical foundation for the Tribunal’s finding in relation to delay. Insofar as the applicant identified three different types of documents that are said to fall within s.424A, I do not accept that the said documents were ones which the Tribunal should have considered would be the reason or part of the reason for affirming the decision that is under review. These were a very substantial volume of documents provided to the department by the applicants, to which the delegate only made some reference. It was obviously open for the Tribunal to query the veracity of the alleged threating letter that was part of this voluminous material provided in support of the assertions concerning involvement of the first applicant’s father-in-law in criminal law enforcement which claim the Tribunal rejected. The delegate said that the police reports could not be authenticated. It was the authenticity of those documents and whether genuine was obviously open as an issue in the review and as part of the applicants claims that had been rejected by the delegate. The newspaper report concerning the first applicant’s brother was also a form of report that was obviously open to challenge in terms of the underlying events. It is open to the Tribunal in this case to make adverse findings as to the authenticity of the documents and the documents are not of a kind that fall within s.424A.

1. Turning to the particulars to ground 1, there was no denial of procedural fairness by the Tribunal in not identifying in advance its credibility findings and inviting the applicant to comment on those credibility findings.  Particular 1 (a) is not made out.  In relation to particular 1(b), the matters identified are not ones in which there was a denial of procedural fairness by reason of the Tribunal not inviting the applicants to comment on the same. 

2. In relation to ground 1(c), there is no obligation on the Tribunal to inform the applicants of the potential credibility findings in terms of the reasoning process of the Tribunal. I do not accept that the reports to the police reports and rejection of the veracity of the same was a matter in respect of which there was any denial of procedural fairness by the Tribunal.  Other than the erroneous identification of 12 months period rather than two months, which I have found was an immaterial error, I do not accept that there is any factual error in the reasoning of the Tribunal and ground 1(d) fails to make out any denial of procedural fairness.  Ground 1 is not made out.

3. In relation to the proposition of failing to take into account relevant considerations, it was a matter for the Tribunal to weigh the evidence and the particulars in ground 2(a) to (l) are, in substance, impermissible challenges to the adverse findings of fact.  There is no jurisdictional fact that was identified which the Tribunal failed to take into account and the mere allegation of a failure to take into account does not give rise to a jurisdictional error. I do not accept that the Tribunal failed to take into account the evidence before the Tribunal. The particulars in paragraph 2(a) to (l) do not establish any jurisdictional error. Ground 2 is not made out.

4. In relation to ground 3 for the reasons I have already given, it is clear that the delay was a relevant matter that the Tribunal was entitled to take into account.  For the reasons I have given, the two month rather than the 12 month period was not a material error in the reasoning of the Tribunal and does not give rise to any jurisdictional error.  I do not regard particular 3(c) as an irrelevant consideration and this was reasoning that was open on the material before the Tribunal. Ground 3 is not made out.

5. In relation to ground 4, the adverse the findings of fact made by the Tribunal were open on the material and cannot be said to lack in evident and intelligible justification.  Ground 4 is not made out.  I note the Court rejected the tender of email communications from a migration agent that was not in evidence before the Tribunal. The material was rejected because it was not relevant to the determination of whether there was a jurisdictional error. To the extent that it was argued that the material might assist in explaining the delay of the applicants, this was a matter for determination by the Tribunal and the further evidence was not admissible.  The amended application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 24 September 2015