AUE16 v Minister for Immigration
[2019] FCCA 1074
•24 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1074 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (Class XA) visa – Application for review – whether the Tribunal misunderstood or constructively failed to consider the Applicant’s claim – whether the Tribunal applied the incorrect test – no jurisdictional error – Application dismissed. |
| Legislation: Migration Act 1958, ss.36(2), 476(1) |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CED15 v Minister for Immigration and Border Protection [2018] FCA 451 CRI026 v Republic of Nauru [2018] HCA 19 CZB16 v Minister for Immigration and Border Protection [2017] FCCA 2382 Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 NABE v Minister for Immigration and Multicultural and Indigenous and Affairs (No.2) [2004] FCAFC 263 Singh v Minister for Immigration and Multicultural Affairs (No.2) [2001] FCA 327 |
| Applicant: | AUE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 709 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 1 April 2019 |
| Date of last submission: | 1 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr McBeth |
| Solicitors for the Applicant: | Clothier Anderson and Associates |
| Counsel for the First Respondent: | Ms Zeleznikow |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent | Australian Government Solicitor |
ORDERS
The application filed on 7 April 2016 and amended on 14 September 2018 be dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 709 of 2016
| AUE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 17 March 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The Applicant is a citizen of Pakistan from the Ningolai village in the Swat district of Khyber Pakhtunkhwa Province. He is a Pashtun and Sunni Muslim.
The Applicant deserted a ship in Fremantle and entered Australia on 17 October 2013. He applied for the visa on 12 December 2013. On 12 August 2014, a delegate of the Minister refused to grant the visa. The Applicant applied to the Tribunal on 22 August 2014.
The Tribunal conducted a hearing on 10 February 2016. The Applicant attended with his legal representative. On 17 March 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa (‘the Decision’).
The Applicant filed an application in this Court on 7 April 2016, seeking judicial review of the decision. He was unrepresented at that time.
Orders were made by Registrar Buljan of this Court on 30 August 2016 as follows:
a)pursuant to r.44.11(c) of the Federal Circuit Court Rules 2001 (‘the Rules’), a hearing under r.44.12 of the Rules be dispensed with and the Application be listed for final hearing;
b)the First Respondent file two copies and serve one copy of the Court Book by 14 September 2016;
c)the Applicant file and serve any amended application with proper particulars of the grounds of the application, a supplementary Court Book, if any, and written submissions no later than 28 days before the final hearing;
d)the First Respondent file and serve written submissions no later than 14 days before the final hearing; and
e)costs be reserved.
On 21 September 2018, Orders were made by consent by His Honour Judge Wilson, as he then was, amending the Orders made on 30 August 2018 so that:
a)the Applicant file and serve any amended application with proper particulars of the grounds of application, a supplementary Court Book, if any, and written submissions by 14 September 2018; and
b)the First Respondent file and serve written submissions by 28 September 2018.
The Applicant obtained legal representation and filed a notice of address for service on 26 August 2016.
The Applicant filed an amended Application, an affidavit affirmed by Catherine Farrell and an outline of submissions on 14 September 2018. The affidavit of Ms Farrell annexed a transcript of the hearing before the Tribunal and Directive 2011/95/EU of the European Parliament and Council (‘the Directive’). The First Respondent filed written submissions on 1 October 2018.
The matter was listed for final hearing on 14 November 2018 before His Honour Judge Wilson. The matter was subsequently re-listed to me for final hearing 1 April 2019.
The Applicant’s claims
On 4 April 2014, the Applicant provided, through his legal representatives, a statutory declaration setting out his claims for protection. The Applicant made a further statutory declaration on 16 May 2014 which amended paragraph 14 of the first statutory declaration.
The Applicant was interviewed by a delegate on 4 June 2014. Further material in support of the Applicant’s application was provided to the delegate on 25 June 2014.
Prior to the Tribunal hearing, the Applicant’s legal representatives provided a further statutory declaration made on 28 January 2016. The Applicant’s legal representatives also filed a pre-hearing and post-hearing submission.
Ground 1
The first ground of review in the application filed on 14 September 2018 is as follows:
‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal misunderstood or constructively failed to consider an integer of the applicant's claim relating to the treatment of his brother and father.
Particulars
a) The Tribunal misunderstood the applicant's claim that his brother had been granted protection in Italy on the basis of substantively similar claims for protection, in that the Tribunal failed to appreciate that 'subsidiary protection status' in Europe is equivalent to complementary protection in Australian law and provides full protection on the basis of a fear of harm.
b) The Tribunal failed to consider the applicant's claim that the catalysts for his brother fleeing Pakistan and successfully seeking protection in Italy were that he was shot at while performing night watch for the Village Defence Committee and that he had identified two Taliban members to the army.
c) The Tribunal failed to consider the claim arising from the material before it that the applicant's fear of harm was well founded on the basis of association with his brother.
d) The Tribunal failed to consider the claim arising from the material before it that the applicant's fear of harm was well founded on the basis of association with his father, who had been killed by the Taliban.’
During the hearing, the Applicant addressed separately each of the integers of this ground of review. I propose to do the same in these reasons.
Ground 1(a)
The Applicant’s initial claim insofar as it relates to this ground of review is to be found in paragraphs [2] and [13] of his statutory declaration dated 4 April 2014. Paragraph [2] of the statutory declaration provided that:
‘A younger brother fled to Italy in 2011 and was granted a refugee visa there.’
Paragraph [13] of the statutory declaration of 4 April 2014 provides as follows:
‘In February 2011, while I was at sea, my brother was shot at while performing night watch for the Village Defence Committee. Following this the army intervened and there was a fight. The Army then searched the village with my brother’s assistance and they arrested two Taliban members found with arms and explosives. It was at this point that my mother asked [him] to flee Pakistan due to the risks for him. He travelled to Italy where he was found to be a refugee and granted protection.’
The claims set out above were acknowledged by the Tribunal at paragraph [6] of the Decision. At paragraph [16] of the Decision, the Tribunal referenced a copy of the brother’s Foreigners Permit of Stay (which was reproduced at page 132 of the Court Book) and noted that:
‘They also produced a copy of [the brother’s] Italian Permesso di Soggiorno per Stranieri (Foreigner’s Permit of Stay) which they suggested showed that he had been issued with a protection visa whereas it states against Refugee ‘Niente’ (nothing) and indicates only that he has been permitted to remain for the validity of his travel document without being granted any visa.’
Following the hearing before the Tribunal, the Applicant’s solicitor submitted a post hearing submission, dated 22 February 2016. As replicated at page 267 of the Court Book, the covering email to the Tribunal purported to attach ‘scanned documentary evidence of the review applicant’s (sic) refugee status in Italy’. Within the submission document itself, the following is stated (Court Book 272):
‘In this regard we attach the following documents confirming that this family member has been found to be owed protection as a refugee in Italy:
ŸScanned copy of a document issued by the Ministry of the Interior Territorial Commission for the Recognition of Crotone International Protection Sexione confirming the review applicant’s brother has been found to be a refugee by the Italian authorities.’
The document said to be attached to the submission is reproduced at page 277 of the Court Book. It relevantly refers to the brother having been granted ‘subsidiary protection status.’
Against the background noted above, the Applicant’s submission is that it was an integer of the Applicant’s claim that the Tribunal did not appreciate that ‘subsidiary protection status’ in Europe is equivalent to complementary protection in Australian law. The Applicant submitted that the words ‘subsidiary protection visa’ and ‘complementary protection visa’ are used interchangeably. In support of this proposition, I was taken by way of example to the High Court of Australia’s use of the terms interchangeably in the decision of CRI026 v Republic of Nauru [2018] HCA 19. The Applicant also referred to Article 2, paragraph (f) and Article 15 of the Directive, as well as to the criterion for the grant of protection visas set out in section 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (‘the Act’), to assert that subsidiary protection is equivalent to complementary protection in Australia.
The Applicant took particular issue with paragraphs [51] and [58] of the Decision. It is convenient to set those paragraphs out in full below:
’51. [The Applicant’s] representatives submitted that the security situation in Pakistan was unpredictable and subject to ongoing change and they submitted that in light of this uncertainty the Tribunal should assess the risk to [the Applicant] on the basis that any assessment which it made might be wrong. They reiterated the need to consider the risks to [the Applicant] cumulatively. They submitted that the documents which they had produced showed that [the Applicant’s] brother had been recognised as a refugee in Italy (although, as referred to above, those documents indicate that [the Applicant’s] brother has only been granted subsidiary protection). [The Applicant’s] representatives said that the protest in Australia which [the Applicant] had attended had been organised to speak out against the TTP's attack on Bacha Khan University on 20 January 2016. They said that they were instructed that this institution was named after the founder of the ANP and that the attack had been motivated for that reason.
…
58. [The Applicant’s] representatives have submitted that it is relevant that his younger brother [Mr X] (who on the basis of the evidence which they produced held a position in the PSF and who he has said was also involved in the Village Defence Committee) has been recognised as a refugee in Italy. However the documents which they produced suggest that his brother has only been granted subsidiary protection. They referred to evidence suggesting that over 800 ANP workers have been killed in recent years by suspected militants in various parts of Pakistan but this figure would appear to have been arrived at by including deaths in terrorist attacks on ANP meetings as well as targeted killings of the sort which [the Applicant] claims to fear. [The Applicant] representatives submitted that there were significant risks of harm to ANP supporters in the Swat Valley, particularly during election times, referring to an ABC Correspondents Report transcript dating from May 2013 in relation to a senior ANP leader and woman, Bushra Gohar, who said that she had had to spend large amounts of time in the relative safety of Islamabad and outside her electorate in the Swabi district of Khyber Pakhtunkhwa during the campaign for the May 2013 general election. However [the Applicant] does not claim that he ever experienced any problems campaigning for the ANP or that he ever felt at risk engaging in the sort of low-level campaigning activities in his village in which I accept he was involved.’
In both of the paragraphs above, the Tribunal notes the Applicant’s claim in respect of his brother and then goes on to state that the documents that were produced by the Applicant suggest that his brother was ‘only’ granted subsidiary protection. The Applicant contended that the error made by the Tribunal was not a mistake of international law, but rather that the Tribunal misunderstood the effect of international law. The Applicant submitted that the inference to be drawn from the Decision was that the Tribunal regarded ‘subsidiary protection’ as some lesser form of protection which it then disregarded. The fact, so it was submitted, is that ‘subsidiary protection’ is the equivalent to ‘complementary protection’ under section 36(2)(aa) of the Act. By failing to understand this, the Tribunal failed to give proper weight to the Applicant’s claim. This is said to give rise to the relevant jurisdictional error.
Finally, the Applicant referred to the decision of the Full Court of the Federal Court of Australia in NABE v Minister for Immigration and Multicultural and Indigenous and Affairs (No.2) [2004] FCAFC 263 (‘NABE’), in particular paragraphs [58], [60] and [63] of that decision. The Applicant submitted that the Tribunal conducts an inquisitorial process and that it ought not limit its consideration of matters to the case articulated by the Applicant. It matters not that the Applicant in this case had not used the proper language when he referred to his brother as having of the status a ‘refugee’. The important point, it is said, is that the brother was granted protection.
The Minister raises three points in relation to the Applicant’s claims under this ground.
a)First, that no submission was made to the Tribunal that ‘subsidiary protection’ was equivalent to ‘complementary protection’.
b)Second, that regardless of how the argument was put before the Tribunal, it was open to the Tribunal to find that there was a difference between the status of a person deemed a ‘refugee’ and the status of a person who was covered by a ‘subsidiary protection visa’.
c)Third, even if there was an error made by the Tribunal, it was an error within jurisdiction.
I accept the first point raised by the Minister. Having regard to the background above, it is clear that no argument was advanced before the Tribunal that ‘subsidiary protection’ was equivalent to ‘complementary protection’. It is also clear that the claim advanced by the Applicant was that his brother was a refugee. I am satisfied that the Applicant never advanced the claim that subsidiary protection was equivalent to complementary protection under the Act.
The Minister also contends that it was open to the Tribunal to find that there was a difference between a refugee and a person to whom subsidiary protection was owed. There is, in my view, a factual basis upon which the Tribunal could reach that conclusion when regard is had to the submissions made by the Applicant and the documents produced to support his claims.
It is important to note that the characterisation of the designation accorded to the Applicant’s brother by the law of Italy is a question of fact to be determined by the Tribunal and not a question of law. Support for this proposition can be found in the decision of the Federal Court of Australia in Singh v Minister for Immigration and Multicultural Affairs (No.2) [2001] FCA 327. That matter concerned claims for protection arising in India and the status of a warrant. At paragraph [22], the Court referred to section 476(1)(e) of the Act and stated as follows:
‘As to s476(1)(e), in my opinion “error of law” refers to an error of Australian law, and in particular the Act and the terms of the Refugees Convention which became applicable by virtue of s.36. Insofar as questions of foreign law might arise in the course of the Tribunal’s assessment of evidence, those are simply questions of fact.’
As noted earlier, the Applicant annexed to the affidavit of Ms Farrell a copy of the Directive and sought to have it placed into evidence. The submission made in reliance on the Directive is that ‘subsidiary protection’ is equivalent to ‘complementary protection’ under the Act.
The Minister objected to the Directive being put into evidence on the basis that it was not open to the Court to admit fresh evidence, and then make findings of fact, which contradicted the findings below: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 (‘Tesic’). In response to this, the Applicant stated that the Directive is, in effect, a legislative instrument and the Court may have regard to its contents in any event.
Having heard the argument in respect of this matter, I am not prepared to admit the Directive into evidence. It seems clear that its admission into evidence is being used to challenge a finding of fact that has been made by the Tribunal. For the reasons given in Tesic, it is not appropriate for this Court, when engaging in judicial review, to admit fresh evidence or to commence an inquiry into findings of fact.
It follows from what I have said above that I regard the Tribunal’s assessment or treatment of the brother’s subsidiary protection status as a matter of fact that the Tribunal was able to determine.
The next issue is whether the Tribunal was required to nevertheless treat or give equal weight to the status of ‘subsidiary protection’ in circumstances where the matter was not put in issue before it. In this respect, references have already been made to the decision in NABE and the statements made by the Full Court there in relation to the obligations on the Tribunal and the undesirability of having to require an Applicant to correctly label or particularise all aspects of his or her claim. Counsel for the Applicant also said, in effect, it matters not that the Applicant has used imprecise language in labelling his brother as a refugee.
The general principle in NABE needs to be weighed against the fact that the Applicant has had access to legal representation, and what might be said to be the specific authorities that deal with situations where applicants have access to lawyers.
In ASD16 v Minister for Immigration and Border Protection [2018] FCA 1165, at paragraph [32] His Honour Justice Tracey stated as follows:
‘The Minister disputed the appellant’s claim that his submissions to the Tribunal included “evidence of torture or other serious harm as part of the general culture”. While his written submissions contained general background information, no such express claim was made and nor did it arise clearly on the material. As the appellant was represented it was to be expected that he would have raised expressly the integers upon which he relied: MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27] – [28] (Beach J).’
Similar sentiments to those set out above were expressed by Justice Thawley in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at paragraph [74].
In this matter, it is significant that the Applicant had legal representation. The submissions made by the legal representatives for the Applicant were made on the basis that the brother had refugee status. These submissions were advanced notwithstanding that the documents that they produced to support those submissions suggested a different position. In short, the documents that were produced indicated that the brother was not a refugee, but at best indicated that the brother had subsidiary protection. Despite this, no submission was made to the Tribunal by qualified representatives about what this meant, or why it was significant. Little weight or attention appears to have been given to the concept of subsidiary protection until now. In that circumstance, it is entirely understandable that the Tribunal would conclude, as it did, that the brother had not been granted refugee status and was only a beneficiary of subsidiary protection. The Applicant cannot in my view, successfully assert that the Tribunal gave insufficient weight to or did not properly consider the brother’s status as a beneficiary of subsidiary protection, when that matter was not clearly articulated in the Tribunal, and especially when the Applicant had the benefit of representation.
Finally, although it is not strictly necessary that I do so given the views I have expressed above, I regard there as being some force behind the Minister’s submission that even if there was an error made by the Tribunal in relation to this ground of review, it was an error within jurisdiction. The brother’s refugee status or otherwise, was a question of fact for the Tribunal to take into account. Whether the Tribunal properly recorded or recognised that fact does not ultimately answer the question as to whether the Applicant himself was entitled to a visa under the Act.
For the above reasons, I dismiss ground 1(a) of the grounds of review.
Ground 1(b)
This ground of review has its genesis in paragraph [13] of the statutory declaration of the Applicant dated 4 April 2014, which has been set out earlier. The Applicant expressly referenced his brother being shot at while performing night watch for the Village Defence Committee. The reference to this claim is acknowledged by the Tribunal at paragraph [6] of its Decision.
The Applicant’s claim centres on the way in which the Tribunal dealt with this information. The Applicant refers in particular to paragraph [58] of the Decision, which has been set out earlier. In summary, the Applicant complains that while the Tribunal sets out a range of matters within that paragraph that are relevant to the risks the Applicant faces, nowhere within that paragraph does the Tribunal make reference to the claim that the Applicant’s brother was shot. It is said that this constitutes a failure on behalf of the Tribunal to actively engage with the claim before it.
In support of the submission that a decision-maker must actively engage with each claim, the Applicant referred to the decision of BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35].
A close review of paragraph [58] of the Decision discloses that there is not an express reference to the brother being shot within that paragraph. What is apparent from a review of that paragraph, however, is that the Tribunal had regard not only to the brother, but to the brother’s circumstances as a position holder within the Pakhtoon Student Federation (‘PSF’) as well as his involvement in the Village Defence Committee. Is also apparent upon review of that paragraph that the Tribunal had regard to the killings of Awami National Party (‘ANP’) workers in recent years and the Applicant’s concession that he never had any problems campaigning for the ANP. When the terms of this paragraph are considered in conjunction with paragraph [6] of the Decision, in which the Tribunal acknowledged, among other things, the circumstances of the brother as having been shot, I am satisfied that the position of the brother, including the fact that he had been shot at, was considered by the Tribunal.
Further evidence that the Tribunal took into account the totality of the circumstances faced by the Applicant and the Applicant’s family members can be found in paragraphs [60] and [64] of the Decision. It is convenient to set those paragraphs out in full below:
‘60. In their submission dated 22 February 2016 [the Applicant’s] representatives submitted that the security situation in Pakistan was unpredictable and subject to ongoing change and they submitted that in light of this uncertainty the Tribunal should assess the risk to [the Applicant] on the basis that any assessment which it made might be wrong. However I consider that it would be mere speculation to conclude on the evidence before me that there is a real chance that there will be such a significant deterioration in the security situation in Pakistan as to expose [the Applicant] to a greater risk of persecution if he returns to his home in the Swat Valley now or in the reasonably foreseeable future. As I put to [the Applicant], the Australian Department of Foreign Affairs and Trade assesses that ANP members are subject to a low and declining level of militant violence in Khyber Pakhtunkhwa. At the hearing before me [the Applicant] referred to his involvement in a protest in Australia which his representatives have said was organised to speak out against the TTP's attack on Bacha Khan University on 20 January 2016. He said that now they knew that even here he stood against them so they would definitely kill him. However I do not accept on the evidence before me that there is a real chance that his holding a poster at this protest in Australia will have elevated his profile such that there will now be a real chance that the Taliban will kill him if he returns to Pakistan. Even taking into account the cumulative effect of [the Applicant’s] involvement in both the ANP and the Village Defence Committee and in this protest, I do not accept on the evidence before me, having regard to the considerations which I have outlined above including [the Applicant’s] repeated return to his village and his continued participation in the ANP and the Village Defence Committee despite the supposed threats to his life, that there is a real chance that he will be killed or otherwise persecuted by the TTP or other extremist groups for reasons of his actual or imputed political opinion in support of the ANP, in opposition to Sunni extremist groups, and in support of the Village Defence Committee, the Pakistani authorities and Western governments, his actual and imputed religious beliefs in opposition to extremist Sunni groups or his membership of the two particular social groups suggested by his representatives, namely 'Peace Committee/Village Defence Committee members' and his family if he returns to Pakistan now or in the reasonably foreseeable future.
…
64. For the reasons given above I do not accept that there is a real chance that [the Applicant] will be persecuted by the TTP or other extremist groups for reasons of his actual or imputed political opinion in support of the ANP, in opposition to Sunni extremist groups, and in support of the Village Defence Committee, the Pakistani authorities and Western governments, his actual and imputed religious beliefs in opposition to extremist Sunni groups or his membership of the two particular social groups suggested by his representatives, namely 'Peace Committee/Village Defence Committee members' and his family, if he returns to his home in his village in Swat now or in the reasonably foreseeable future. I have considered the totality of [the Applicant’s] circumstances as someone who comes from Swat who is a member of the ANP, who has also been involved in the Village Defence Committee, whose life has been threatened by the Taliban and who suffers from anxiety and depression. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that [the Applicant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Pakistan now or in the reasonably foreseeable future.’
In reaching this view, I have taken into account and applied the comments of the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] to [47]. At paragraph [47], the Full Court stated:
‘The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
In this matter it is clear that the circumstances of the brother featured in the mind of the Tribunal. Those circumstances included the brother’s participation in the Village Defence Committee, his involvement in the ANP, his fleeing of Pakistan and his protection status in Italy. The Tribunal expressly stated that it took into account the cumulative effect of matters relating not only to the Applicant but to his family.
For the above reasons, ground 1(b) is not made out.
Grounds 1(c) and 1(d)
In respect of these grounds, the Applicant submits that the Tribunal was satisfied that the Applicant’s father had been killed by the Taliban in 2009, and that the Applicant’s brother had been shot at by the Taliban. Those findings, it is submitted, made it more likely that the Applicant himself would be targeted by the Taliban. The Applicant complains that the Tribunal failed to consider this aspect of the claim, that is, that the Applicant was a person who faced a greater risk because of the violence committed towards his brother and his father. In failing to do this, it is said that the Tribunal did not genuinely engage with the claim that was made and also did not act in accordance with the requirements set out at section 430 of the Act.
The First Respondent says that this ground cannot be made out because these matters were considered. The First Respondent points to the following:
a)Paragraph [4] of the Decision, which expressly references the father being killed by the Taliban.
b)Paragraphs [6] to [8] of the Decision, where there are express references to the Applicant’s brother being shot at and also generally to his family’s involvement in the Village Defence Committee and the ANP.
c)Paragraphs [12] to [14] of the Decision, which reference the family’s involvement and support of the ANP, his brother’s involvement in the Village Defence Committee, his brother’s name being on a Taliban list, copies of ANP membership cards for the Applicant, his brother, and his father and other documentation confirming that his family members had been supporters of the ANP for a long time.
d)Paragraph [16] of the Decision, which refers to his brother being elected as president of the Azad PSF.
e)Paragraph [48] of the Decision, which references his brother’s recognition as refugee.
f)Paragraph [51] of the Decision, in which a submission was made by the Applicant that the risks the Applicant faced need to be assessed cumulatively.
Having set out the factual and other matters in the paragraphs above, the Tribunal set out, relevantly, its findings at paragraphs [60] and paragraph [64]. Those paragraphs are detailed above.
When paragraphs [60] and [64] are examined closely, it can be seen that in each paragraph, the Tribunal takes into account the risks faced by the Applicant by reference to his association with his father, his brother and indeed the involvement of other family members in political and other activities. For example, in paragraph [60], the Tribunal relevantly states that:
‘Even taking into account the cumulative effect of [the Applicant’s] involvement in both the ANP and the Village Defence Committee and in this protest, I do not accept on the evidence before me, having regard to the considerations which I have outlined above… there is a real chance that he will be killed or otherwise persecuted by the TTP or other extremist groups for reasons of his…. membership of the two particular social groups suggested by his representatives, namely “Peace Committee/Village Defence Committee members” and his family if he returns to Pakistan now or in the reasonably foreseeable future’ (emphasis added).
Similarly, at paragraph [64] of the Decision, the Applicant’s membership with particular social groups and his family’s membership with those groups is expressly referred to prior to the Tribunal not accepting the Applicant’s submission that he has a well-founded fear of being persecuted for one or more of the Convention reasons.
Having regard to the above matters, I find that the Tribunal did not make a jurisdictional error in respect of this ground. Accordingly I dismiss ground 1(c) and 1(d) of the Application.
Ground 2
The second ground of review in the Application is as follows:
‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal misconstrued the applicant’s claim by erroneously stating that the applicant had not been concerned about being on a Taliban list in 2011.’
The Tribunal summarises the evidence relating to this ground at paragraphs [18] and [55] of the Decision. It is convenient to set out both of these paragraphs below:
‘18. [The Applicant] said that each of nine sub-villages had had to nominate five men to undertake night patrol duties for the Village Defence Committee for a period. He confirmed that he claimed that he had done this every 15 days and he said that he had been responsible for patrolling 60 houses which he said was the number in his sub-village. He said that there had been a higher committee above this which had liaised with the Pakistani Army and had done “high level committee work against the Taliban”. He said that on one occasion he had pointed out to the Pakistani Army two persons in two separate houses in his mohalla whom he had believed to belong to the Taliban. With regard to the threatening letter in 2011 he said that his family had received this letter and that it had been very concerning but that it had not been something that had made him feel that his life had been in danger. He said that in 2013 the Taliban had posted a list in public areas to scare people but he had no physical proof of this list.
…
55. [The Applicant] has said that his family told him that his name was mentioned in a Taliban letter which was dropped at the mosque in 2011. He has said that this was very concerning but it did not make him feel that his life was in danger. He has said that he was prompted to desert his ship in Fremantle in October 2013 by a telephone conversation which he had with wife and mother when his ship was in Saudi Arabia in approximately August 2013 but although he has said that they told him that his name and that of his brother Anwar were in a Taliban list, that there was a big risk and that his life was in danger, he was unable to explain to me why he had regarded this news any differently from the previous occasions on which he had been told that his name had been in a Taliban list or the Taliban had threatened to kill him. He said that in 2013 he had known that the threat had been serious because they had killed many people but he has said that the Taliban killed his father in 2009 because they accused his father of helping the army. He has not claimed that he felt that his own life was in danger as a result of this event: he has said that he continued returning to his village between the periods he spent at sea and that he continued his involvement in the ANP and in the Village Defence Committee.’
Having set out the evidence, the Tribunal at paragraph [61] of the Decision set out its finding. It is convenient to set out paragraph [61] below:
‘61. I likewise do not accept that, as [the Applicant’s] representatives submitted, there is a real chance that he will be prevented or inhibited from continuing his involvement in the ANP and the Village Defence Committee as a result of the threats from the Taliban and that this will amount to persecution in the sense referred to in S395, cited above. I consider it relevant once again that [the Applicant] does not claim to have been prevented or inhibited from continuing his involvement in these activities in the past as a result of the threats from the Taliban: he has said that each time he returned to his village after working on board ships at sea he resumed his involvement. For the reasons given above I do not accept his claim that everything changed as a result of a telephone call which he received from his wife and mother when his ship was in Saudi Arabia in approximately August 2013. He has said that they told him that his life was at risk because his name was in a Taliban list but he has claimed that he had been told the same thing in 2011 and this had not made him feel that his life was in danger. [The Applicant’s] representatives also submitted that the threats to his life in themselves amounted to serious harm, relying on the decision of Marshall J in VBAO, referred to above, but as stated above the High Court held in that case that decision-makers were required to look at the risk of future harm, not the risk of future communications.’
Counsel for the Applicant invited me to consider the transcript of the proceedings before the Tribunal to identify when the Applicant first became concerned about being on a Taliban list. The relevant exchange occurs on pages 13 to 15 of the transcript, and is set out below:
‘[MEMBER]: And after that you went away on board a ship, the [XY] Transporter.
INTERPRETER: Yeah, I was going and coming on a ship.
[MEMBER]: Right. So before you left to go on that ship, on the [XY] Transporter, had you had any particular problems, or had you or your family had any particular problems?
INTERPRETER: First when they were generally - you know, they were issuing - they were making these announcements or sending these leaflets, people are - and us, we were not taking it seriously because (indistinct) Then my wife told me, you know, that, "This is serious, you know. They are after you." So then I left.
[MEMBER]: Right. Was that before you went on board the [XY] Transporter?
INTERPRETER: Yeah, he says I can't remember what they did but since 2004 he's been going on the ship.
[MEMBER]: Yeah. I'm not asking you to remember the dates. I was hoping you might remember the ships.
INTERPRETER: Yeah, after I return from this transporter. Yeah, my brother, he already left. After that, I still can't remember the exact dates, you know, so my brain is not - I can't get my head around that because my brain is not working.
[MEMBER]: That's what I'm saying, I'm not asking you to remember the exact dates.
INTERPRETER: Yeah.
[MEMBER]: I'm just trying to find out when it was that you say you first had some problems in your village.
INTERPRETER: Yeah, he said that like before there was - you know, being a member of the National Party or the Village Defence Committee there was always problems but in 2013 I was in Saudi Arabia and when I called home and they told me, "Do not come." You know, they clearly told me, "Do not come here because you are now in danger." Prior to that, I went twice to Australia. So that's why I do not stay. Then the third time, you know, at that time, that's why I stay here.
[MEMBER]: All right. That was when you were on board the MV [ABC]. That's [A-B-C]. That's the name of the ship.
INTERPRETER: [ABC]?
[MEMBER]: Do you remember the name of the last ship that you actually sailed on?
INTERPRETER: MV [ABC] III.
[MEMBER]: That's the ship I was talking about. Okay. So when you left Pakistan to go and work on that ship, did you fear for your safety in your village in the Swat Valley?
INTERPRETER: Yeah, definitely. Yeah, he says that I feared for my life but not to the extent to when my wife and my mother told me, then I was very scared.
[MEMBER]: All right. What did they tell you that made you very scared?
INTERPRETER: They told me that they are killing you. You will not (indistinct)
[MEMBER]: Right. But I understand the Taliban had threatened to kill you before.
INTERPRETER: But at that time, as I said, you know, sometimes they will just give you a warning letter, you know, or give you - just talk to you or warn you, you know, by talking you (sic), or sometimes they will just kill you without any warning. They just - you know, it was well known that was the way they did it. Sometimes, you know, they warn some people. They talk to them. They send leaflet or - sometimes without any warning they will just (indistinct)
[MEMBER]: Yes. What I'm trying to understand, Mr [Applicant], is what changed when your wife and your mother called you in Saudi Arabia. What changed? What made you decide, "I can't go back to my village"?
INTERPRETER: Yeah, because when I spoke to my wife and to my mother, they told me, "Do not come to your home country. Do not return home because your life is in danger here."
[MEMBER]: But from what you've told me, your life had already been in danger for some years.
INTERPRETER: But I didn't take it so seriously. This time I knew it was serious.
[MEMBER]: Why did you know it was serious?
INTERPRETER: Because they killed many people. I can't go to my death.’
Counsel for the Applicant conceded during an exchange from the bar table that the transcript extracted above did not expressly refer to any particular date. He submitted, however, that the reference to the ship ‘[XY]’ was a reference to the vessel that the Applicant sailed on in 2011 and that that fact provided a reference point for the date on which the Applicant, in the transcript, was saying he became concerned by the Taliban.
Counsel for the Applicant submitted that the failure of the Tribunal to clarify the date of when the Applicant’s concerns for his safety first arose was not a matter that should be put upon the Applicant. In support of this submission, I was referred to the decision of this Court in CZB16 v Minister for Immigration and Border Protection [2017] FCCA 2382. In that matter, the Court found that the failure on behalf of the Tribunal to clarify with an applicant the specifics as to when his name was placed on a Taliban list consequently gave rise to an error made by the Tribunal.
A number of matters arise when the transcript is reviewed in context. The first is that the Tribunal member did endeavour to put timeframes around the Applicant’s account. The Member did this through asking for dates or alternatively asking the Applicant to recall events by reference to which vessel he may have been assigned to at the time. This is not a case where there was an omission or a lack of endeavour on behalf of the Tribunal member to ascertain the relevant time periods.
Second, it is apparent on review of the transcript that the claim advanced by the Applicant was that his concern for his own safety changed in 2013 when he was in Saudi Arabia, following a phone call from his wife and mother. That this caused the Applicant a serious concern is apparent from page 13, lines 20-22 of the transcript. It is also apparent from, among other things, the statutory declaration signed by the Applicant on 16 May 2014.
Third, a fair reading of the transcript discloses that the Applicant only became concerned about his safety in 2013. Prior to that, he was not seriously concerned. This is apparent from the following references to the transcript: p.13, lines 14-34, p.14 lines 1-8 and lines 22-25 and p.15, lines 1-10. This is also supported by other evidence, for example the statutory declaration signed by the Applicant on 16 May 2014 and paragraph [8] of the statutory declaration signed by the Applicant on 28 January 2016, in which he sought to address the findings made by the delegate prior to the matter being heard by the Tribunal. He stated the following at paragraph [8] of that statutory declaration:
‘I also understand that the Immigration officer had doubts about the threat letter my family received in 2011. I think they could not understand why I was not more scared about it. At that time these threat letters were not that uncommon as it was a known strategy used by the Taliban. It was very concerning and worrying to get a letter like that but it was not something that made me feel my life was immediately in danger.’
When all of the above material is considered, I find that it was open to the Tribunal in paragraph [61] of the Decision to find that the Applicant had not been concerned about being on a Taliban list in 2011. So much is clear from the evidence referred to above.
Furthermore, even if it can be said that the transcript references properly relate to a time in 2011, the Applicant’s own evidence discloses that he was not seriously concerned about any threat that he may have faced in 2011.
Accordingly, this ground of review must fail.
Ground 3
The third ground of review in the application is:
‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal applied the incorrect test by referring to past harm rather than fear of future harm, and/or the Tribunal failed to give proper consideration to the applicant's claim to fear harm from increased violence in the context of coming elections.’
The Applicant raises two complaints under this ground. The first is that the Tribunal did not properly consider the claim by the Applicant that he feared harm from increased violence in the context of upcoming elections. The second complaint is that the Tribunal applied the wrong test by referring to past harm, rather than a fear of future harm.
The genesis of this complaint is said to arise from the post hearing submission made to the Tribunal on behalf of the Applicant. That document summarises the content of a DFAT Country Report – Pakistan (15 January 2016). The report, among other things, provides an assessment of the risk of violence faced by ANP members. Following the extract of the report, the representatives for the Applicant made submissions as to the risk of politically motivated violence faced by ANP members. The following was then submitted on behalf of the Applicant on page 2 of the post hearing submission dated 22 February 2016 (Court Book 269):
‘We also note that the risk of politically motivated violence (including from militant groups as well as other sources as rival supporters etc) and unrest would naturally follow national and local political cycles. The last national election was held in 2013, which may explain the purported decrease in militant attacks in 2015, however it would be reasonable to expect that this violence may increase leading up to the next national elections in 2018 and provincial elections prior to then.’
Having received the submission, the Tribunal then dealt with it at paragraphs [59]-[60] of the Decision. Paragraph [60] has been set out previously. Relevantly, in respect of these paragraphs, it is said that the Tribunal failed to grapple with the claim in relation to fear of future harm based on upcoming elections. Rather, it is submitted, the paragraphs relevantly deal with politically motivated violence and general unrest.
It is further submitted on behalf of the Applicant that even if it can be said that the Tribunal was correct and the claim made by the Applicant was not limited to the claim of harm based on participation in election campaigns, it is not correct for the Tribunal to say that he never made a claim about upcoming elections. It is submitted that the test has to be forward-looking. There needs to be an assessment of future harm, which was not undertaken here. Accordingly, the Tribunal failed to ask the relevant question and that of itself amounts to jurisdictional error.
A review of the materials that were before the Tribunal discloses that prior to the Tribunal hearing, no claim was ever made of a fear of harm based on participation in upcoming elections. It is a claim that arose in a post hearing submission put to the Tribunal on 22 February 2016.
The post hearing submission was relied on by the Applicant as evidence of his claim. When the totality of the post hearing submission is read, however, it is apparent that that submission concerns risks to the Applicant of politically motivated violence and unrest. There is nothing, in my view, in the document which provides the basis for a claim that the Applicant feared harm because of upcoming elections. At its highest, the Applicant’s claim is that violence may increase leading up to elections.
The claim of politically motivated violence, having been advanced by the Applicant, was dealt with by the Tribunal. The risks associated with politically motivated violence are dealt with by the Tribunal in various paragraphs including the following:
a)Paragraph [53] of the Decision, where the Tribunal accepted the Applicant’s claims that he and his family had been supporters of the ANP and had engaged in political activities.
b)Paragraph [54] of the Decision, where the Tribunal indicated that it had difficulty accepting that the Applicant had been singled out or threatened by the Taliban based on his very low level involvement in the ANP.
c)Paragraph [59] of the Decision, where the Tribunal notes the claim in relation to an increase in violence at the next national elections and goes on to note that this was not the Applicant’s claim.
d)Paragraph [60] of the Decision, where the Tribunal put to the Applicant that DFAT assesses ANP members as subject to low and declining levels of militant violence in the relevant area. This finding is made in a context where the Tribunal in the preceding paragraph expressly acknowledged the prospect of increased violence at upcoming elections.
Regard may also be had to the statutory declaration dated 28 January 2016 submitted by the Applicant. In paragraph [6] of that statutory declaration, the Applicant, in a fulsome fashion, responds to the view of the delegate in relation to his membership with the ANP. Nowhere within paragraph [6] does the Applicant express a fear based on political campaigning or elections.
For the reasons set out above, I am satisfied that the Tribunal dealt with the claims that were before it. Those claims were concerned with politically motivated violence and not with a claim that the Applicant feared harm from increased violence in the context of upcoming elections.
The other aspect of the Applicant’s claim under this ground is the alleged failure of the Tribunal to apply a forward-looking test. This claim is said to arise from paragraph [59] of the Decision.
In my view, a plain reading of paragraph [60] of the Decision discloses, among other things, that the Tribunal made specific findings about the risk of future harm to ANP supporters. Paragraph [60] of the Decision sets out specific findings made by the Tribunal in relation to future harm. Without being exhaustive about it, the Tribunal considered at paragraph [60] that:
‘…it would be mere speculation to conclude on the evidence before me that there is a real chance that there will be a significant deterioration in the security situation in Pakistan as to expose [the Applicant] to a greater risk of persecution if he returns to his home in the Swat Valley now or in the reasonable foreseeable future. As I put to [the Applicant], the Australian Department of Foreign Affairs and Trade assesses that ANP members are subject to a low and declining level of militant violence in Khyber Pakhtunkhwa.’
Later in paragraph [60], the Tribunal, having taken into account the cumulative effect of the Applicant’s involvement in the ANP and the Village Defence Committee, assesses the risk of harm to him on a range of bases and reaches a conclusion in respect of those bases. I have previously set out paragraph [60] of the Decision in these reasons. For completeness, the Tribunal also assessed the risk of future harm to the Applicant upon being removed from Australia and returning to Pakistan at paragraphs [65] to [67] of the Decision.
Having reviewed the evidence, and for the reasons set out above, I find that the Applicant has not made out ground 3. Accordingly this ground of review must fail.
As none of the Applicant’s grounds has been made out, the Application will be dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 24 April 2019