AUP15 v Minister for Immigration

[2016] FCCA 2943

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2943

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal (as it then was) (now the Administrative Appeals Tribunal) – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 424A, 424A(3), 424A(3)(a), 424A(3)(b)

Cases cited:

SZATV v the Minister for Immigration and Citizenship (2007) 233 CLR 18

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259
NADR v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 167

Applicant: AUP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1142 of 2015

Judgment of: Judge Hartnett

Hearing date: 18 October 2016

Delivered at: Melbourne

Delivered on: 18 October 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Hosking

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1142 of 2015

AUP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) made on 30 April 2015 in which the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection made on 13 September 2013 not to grant the Applicant a protection (class XA) visa. 

2. The grounds of the application are 10 in number and are as follows:-

   “1.    The member did not understand properly the principal (sic) of Relocation.  The tribunal has not put into consideration the High court decision regarding relocation. (plaintiff M-13-2011v Minister for immigration and citizenship {2011}, HCA 23 (June the 23^rd  2011).

   2.      Real chance of risk had not been understood by the member; if I am returned to Pakistan.

   3.      According to the country information, I have not been given natural justice or procedural fairness.

   4.      The member has not given proper weight to my psychologist reports.

   5.  I had provided relevant information to the member, the member failed to consider them.

   6.      The member did not understand as my being the member of ANP (AWAMI NATIONAL PARTY).

   7.      The member did not consider my budget whether or not I would be able to stay in Lahore without being supported.  There is no government free fund to support the masses in Pakistan.  I would be admitted in the hospital in Pakistan, but for how long?  Will I not come to the public to earn?  I will definitely be chased.

   8.      The member did not consider properly if being in the mental hospital in Hyderabad or Lahore without any friend or family member.

   9.      The member did not consider Taliban and their network that how they work and chase their target.

   10.    The member applied relocation rules too strictly which is contrary, (up to some extent) to the High court rules.  It is totally unfair.”

3. The First Respondent, in amended response filed 13 July 2016, seeks dismissal of the application filed 21 May 2015 and that the Applicant pay the First Respondent’s costs.

4. The Applicant relies upon written submissions filed 23 September 2016.  The First Respondent relies upon written submissions filed 4 October 2016.  There is before the Court the evidence as contained in the court book filed 21 December 2015.

Background

1. The Applicant is a citizen of Pakistan.  The Applicant claims, and the Tribunal accepted, that he was born on 3 September 1986 in Basia village, Hazro area, Attock district of Punjab Province on the border with Khyber Pakhtunkhwa (KPK).  The Applicant speaks, reads and writes Urdu and speaks Hindko and Pashto.  His father was an English teacher at a government high school and retired in 2010. 

   
   

   The Applicant completed a Diploma of Business Administration and a Bachelor of Arts in Pakistan.  He was granted a student visa on 7 April 2010 and first entered Australia on 22 April 2010 as the holder of a student (class TU) visa.  He returned to Pakistan from 25 October 2012 to 17 November 2011 and from 9 August 2012 to 25 August 2012.  He has completed a Diploma of Business Management in Australia.  His parents and siblings have lived in Italy since 2010. 

2. On 5 December 2012, the Applicant applied for a protection (class XA) visa.  He made a personal statement in support of that application. 

3. On 13 December 2013, a delegate of the Minister refused the Applicant’s application for a protection (class XA) visa.  On 23 September 2013, the Applicant applied to the Tribunal for review of the delegate’s decision.  

4. On 3 March 2014, the Tribunal invited the Applicant to appear before it on 3 April 2014. That hearing was subsequently postponed to 29 April 2014 and then to 17 June 2014.

5. On 17 June 2014 the Applicant appeared before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.  The Applicant was represented in relation to the review by his registered migration agent.  At the hearing the Applicant provided to the Tribunal a psychologist’s report, dated 9 June 2014. 

6. Following the hearing, and on 18 August 2014, the Applicant’s migration agent provided a written submission to the Tribunal. 

7. On 23 September 2014 the Applicant’s migration agent provided to the Tribunal a psychologist’s report dated 19 August 2014.  That report was by way of update to the earlier psychologist’s report of 9 June 2014. 

Applicant’s Claims

1. The Applicant claimed before the Tribunal to have a well-founded fear of persecution in Pakistan, and to face a real risk of significant harm if he returned to Pakistan because he sought to open a co-educational English language school in the Attock District, and because he had an association with the Awami National Party (ANP). 

2. The Applicant claimed that while he was in Pakistan in August 2012, he received threats from extremists in Pakistan for the reasons described in the preceding paragraph.  He also claimed that he would be compelled to seek to open another English language institute if he returned to Pakistan, and that he would be harmed because of his political opinion in favour of English language education and co-education. 

ANP involvement

1. The Tribunal considered the Applicant’s claims in relation to his involvement with the ANP in paragraphs 11 to 17 inclusive, and paragraphs 35 and 36 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’).

2. The Applicant claimed that he and his father were long-standing and active supporters of the ANP.  He claimed that his father was very close to a senior ANP minister from the KPK who was killed in a suicide bomb attack in Peshawar in December 2012, and also with a former member of the KPK National Assembly Swabi district and district president. He stated his father provided advice to the ANP on education matters because he was a teacher and had connections with the local people.  Specifically, that the ANP consulted his father in November 2011 in relation to a proposal to upgrade a local girls elementary school to a high school. 

3. The Tribunal noted in paragraph 13 of its Decision Record that the Applicant’s father had moved to Italy in 2010, and that the Applicant stated his father returned to Pakistan every three months, and provided a copy of his father’s passport.

4. The Tribunal accepted that the Applicant and his father may have been ANP supporters.  The Tribunal had earlier noted that the ANP held government in KPK between 2008 and 2013.  ANP leaders and officials have been targeted by militants in KPK and Karachi due to the party’s secular platform and support for anti-Taliban military operations in KPK.

5. The Tribunal accepted that the Applicant’s father may have liaised with the ANP in relation to the funding of a girls’ school in the Attock district in 2012.  The Tribunal did not accept, however, that the Applicant’s father was a senior adviser to the ANP.

6. The Tribunal noted the Applicant left Pakistan in April 2010 and so had limited involvement with the ANP since that time.  The Tribunal noted that neither the Applicant nor his father suffered any harm because of their ANP involvement prior to the claimed threats in 2012, which was consistent with country information which indicated that militants had primarily targeted high profile ANP leaders and officials in KPK.

7. The Tribunal did not accept that the Applicant would be targeted for harm on the basis that he was an ANP supporter absent the English language school.  The Tribunal also noted the Applicant had been absent from the Attock district for three years since advertising the school, which he never actually opened, and did not accept that the Applicant would be of any interest to  militants or extremists now.

8. The Tribunal found that on this basis, the Applicant did not have a well-founded fear of persecution in Pakistan because of his actual or imputed political opinion, and also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Pakistan, the Applicant would suffer significant harm on the basis of his involvement with the ANP.

English language school

1. The Tribunal considered the Applicant’s claims in relation to the English language school at paragraphs 18 to 36 inclusive of its Decision Record. 

2. The Applicant claimed that his father rang him in 2012 and told him there was a need for an English language school in Attock.  The Applicant stated that, following this call, he planned to open a co-educational English language school in the district.  He said the ANP provided furniture and computers for the school, and that he and his father signed a lease for premises for the school, the lease agreement being dated 15 August 2012.

3. The Applicant provided to the Tribunal a copy of an advertising sticker for the school which he claimed he had distributed throughout the Attock district.  He also provided a copy of a newspaper, dated 16 August 2012, containing an advertisement for the institute in the same terms as the sticker. 

4. The Applicant claimed that on 19 and 20 August 2012 he received threatening phone calls telling him not to spread the English language or co-education and not to associate with the ANP or he would be killed.  He said his father received a similar call on 23 August 2012 and that about two weeks after the Applicant returned to Australia, his uncle told his father that unknown militants had been to their home in Basia looking for the Applicant and his father.  His father then returned to Italy.

5. At the hearing the Tribunal raised with the Applicant a number of concerns about the credibility of his claims.  In particular, the Tribunal questioned the Applicant as to the lack of evidence of planning for the opening of an English language school in the Attock district.

6. On the basis of its credibility concerns, the Tribunal said at paragraphs 27 and 28 of the Decision Record:-

   “27. The Tribunal does not accept that the applicant genuinely intended to open an English language institute in Attock.  The Tribunal does not accept that the applicant signed a lease for premises on 15 August and advertised the institute in a newspaper the next day with no staff, no curriculum and no planning.  The Tribunal considers that, if the applicant had genuinely planned to open such an institute, he would have been able to provide evidence of having undertaken such planning prior to signing a lease and advertising his institute. 

   28. In the absence of any other materials indicating that the applicant had genuinely planned to open an English language institute, the Tribunal finds that the advertising stickers provided by the applicant were produced to create a protection claim and that the advertisement was placed in the newspaper to create a protection claim.”

7. On the basis of country information, the Tribunal accepted that there had been attacks by militants in the Attock district.  However, it noted that these attacks were directed toward military, government or international security targets and not toward individuals.

8. The Tribunal said further, at paragraphs 35 and 36 of the Decision Record the following:-

   “35. Because the Tribunal finds that the applicant has contrived the evidence regarding the establishment of a co-educational English language institute, the Tribunal does not accept his evidence that he and his father were threatened or that people went to his home in Basia and the Tribunal places no weight on the FIR provided by the applicant. In making this finding, the Tribunal has had regard to the country information above and also notes that English is one of the official languages of Pakistan and is reportedly the language of instruction 50% of the time in schools in Punjab; that the applicant’s father was an English teacher in a government school in Attock and did not suffer any harm because of his occupation; that there are other English language schools operating in Attock, including in Kamra, indicating that the applicant was not breaking new ground with his institute; that most universities in Pakistan are co-educational;  that the applicant and his father were actively ANP supporters in Attock without attracting any harm, despite the apparent presence of militants including the TTP; that the ANP fielded a candidate in Attock in 2013 and the evidence before the tribunal does not indicate that ANP supporters or campaigners in Attock were targeted;  and that the applicant’s father liaised with and advised the ANP in the local community regarding the expansion of a girls’ school in 2012 without attracting any threats or harm. 

   36. Even if the applicant was threatened or warned, which the Tribunal does not accept, the Tribunal does not accept that there is a real chance he will suffer serious harm in Attock now or in the reasonably foreseeable future.  The applicant did not open a co-educational institute in 2012, and the Tribunal does not accept that he will open a co-educational English language institute on return to Attock as the Tribunal does not accept that he genuinely intended to open an institute in 2012 or that he is compelled to help people by teaching them English in a co-educational environment.  The Tribunal does not accept that the applicant will be targeted because he is an ANP supporter, absent the co-educational English language institute.  The applicant and his father were active ANP supporters in Attock without coming to any harm or receiving any threats before advertising the institute, and the evidence before the tribunal does not indicate that ANP supporters have been targeted in Attock. The applicant has been absent from Attock for approximately three years since advertising the institute which he never actually opened and the Tribunal does not accept that he will be of any interest to local extremists or militants now.”

Relocation

1. As a separate and independent finding, the Tribunal was satisfied that the Applicant could safely and reasonably relocate to another part of Pakistan.  Such relocation was considered by the Tribunal in paragraphs 37 to 53 inclusive of the Decision Record.

2. It was not necessary for the Tribunal to embark on making this separate and independent finding given that the Tribunal did not accept that the Applicant would experience serious or significant harm in the Attock district.  Nevertheless, the Tribunal proceeded to consider whether there was another place in Pakistan to which the Applicant could relocate and if so, whether in all of the Applicant’s circumstances, it was reasonable for the Applicant to so relocate.

3. This part of the Decision Record was not strictly necessary, and were there any error attending this part of the decision it would not affect the decision of the Tribunal.  However, the Tribunal adopted a correct legal and orthodox approach to the question and concluded that the Applicant could safely and reasonably relocate to a large city in Punjab Province.

4. The Tribunal first considered whether the Applicant could safely relocate to one of the large cities in Punjab Province and, having found that he could, the Tribunal then considered whether it was reasonable for the Applicant to relocate to one of the large cities in Punjab Province.

5. The Tribunal did not accept the Applicant would face a real chance of serious harm elsewhere in Punjab on the basis of his involvement with the ANP or if he were to open an English language school in Punjab. 

6. The Tribunal noted the Applicant’s claims that he had no family network or support outside the Attock district and the Applicant’s material before the Tribunal that he was receiving psychiatric care and could not cope with the stress of relocating.  It was also submitted by the Applicant that extremists attacks across Pakistan made relocation unreasonable.

7. The Tribunal found the Applicant would be able to obtain employment and accommodation and establish himself in one of the large cities in Punjab Province and, in making such finding, relied on the Applicant’s education and previous employment.

8. The Tribunal considered the psychologist’s report of 9 June 2014 which set out a history as narrated by the Applicant and which concluded that he had clinically significant levels of depression and anxiety indicating the presence of adjustment disorder with depression and anxiety.

9. The Tribunal accepted the Applicant was suffering from anxiety and depression.  However, the Tribunal noted the Applicant had been able to support himself in Australia away from his familiar environment and was satisfied that the Applicant did not face a real chance of serious harm in a different part of Punjab, and therefore should not be under emotional stress because of his safety.

10. The Tribunal noted that whilst there were limited mental health services in Pakistan there were mental health hospitals in Lahore and Hyderabad and that antidepressants such as Prozac were popular and widely available. 

11. The Tribunal found that the Applicant would be able to access treatment for depression and anxiety in large cities in Punjab such as Lahore possibly more easily than in Attock.

12. The Tribunal accepted there was insecurity in various parts of Pakistan.  However, on the basis of country information, found the security situation in large urban centres was relatively safe.

13. The Tribunal found that the Applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) or the criterion in s.36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa.

Consideration

Grounds 1 and 10

1. By these grounds the Applicant alleges the Tribunal made an error of law in considering whether the Applicant could relocate within Pakistan.  These grounds have no merit.

2. Firstly, any error in relation to the Tribunal’s consideration of whether the Applicant could relocate within Pakistan does not affect the decision ultimately made by the Tribunal.  The Tribunal, in any event, made no error of law.

3. The Tribunal considered whether the Applicant had a well-founded fear of persecution or faced a real risk of serious harm in all parts of Pakistan. 

4. Having concluded that the Applicant could safely relocate to one of the large cities in Punjab Province, the Tribunal considered whether any relocation would be reasonable in the sense of being practicable in the Applicant’s particular circumstances.

1. This accorded with the approach endorsed by the High Court in

   
   SZATV v the Minister for Immigration and Citizenship

   (2007) 233 CLR 18.[1]

   [1] At 26-27 (Gummow, Hayne and Crennan JJ), 49 (Callinan J).

2. The Tribunal found the Applicant did not have a well-founded fear of persecution and would not face a real risk of significant harm for any of the reasons claimed, in his home district.  That was a sufficient basis for the Tribunal to affirm the delegate’s decision.

Ground 2

1. The Applicant contends the Tribunal made an error of law in considering whether he faced a real chance of serious harm or a real risk of significant harm if returned to Pakistan.  The Applicant does not identify any particular error of law claimed.

2. The Tribunal did not make an error of law. It accurately set out the law it was required to apply in its Decision Record. It correctly stated the criteria in section 36(2)(a) and 36(2)(a)(a) of the Act. The Tribunal took into account relevant material, did not take into account irrelevant material, considered each of the claims made by the Applicant and made findings about the Applicant’s evidence open to it on the evidence before it and on its consideration of relevant country information. All a matter for the Tribunal.

Ground 3

1. The Applicant alleges he was not afforded procedural fairness in relation to country information considered by the Tribunal.

2. At the time of the Tribunal’s decision, s.422B of the Act provided that Division 4 of Part 7 of the Act:

   “…is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

3. Under s.424A the Tribunal was required to give the Applicant an opportunity to comment on information that it considered:

   “(a)…would be the reason or a part of the reason for affirming the decision that is under review.”

4. Section 424A(3) provided that the obligation in section 424A did not apply to information:

   “3…

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review.”

5. To the extent the Tribunal relied on country information, it was not required to give the Applicant an opportunity to comment on that information because it was information that fell within section 424A(3)(a) or (b).

6. The Minister further correctly submitted that the Tribunal’s thought processes, preliminary views and adverse conclusions about the evidence provided by the Applicant do not constitute “information” for the purposes of s.424A.[2]

   [2] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

Grounds 4, 6, 7, 8 and 9

1. These grounds simply invite the Court to engage in impermissible merits reviews and, accordingly, are dismissed.

2. The findings made by the Tribunal in respect of each of the factual matters raised by the Applicant were open to the Tribunal on the material before it.  The weight to be given to any particular piece of that evidence was a matter for the Tribunal.[3]

   [3] Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9].

Ground 5

1. The Applicant alleges the Minister failed to consider relevant information, but provides no particulars as to what information it is the Applicant says the Minister failed to consider.  This ground cannot succeed.  The Tribunal considered each and every of the claims advanced by the Applicant, and made findings in respect of them.

2. In the Applicant’s written submissions filed on 23 September 2016 the Applicant alleges that the Tribunal was biased.  There is nothing in the Tribunal’s Decision Record which might indicate the Tribunal did not bring an impartial mind to the decision before it. This is a serious allegation and should not have been made.  The Applicant simply disagrees with the factual findings of the Tribunal.

3. The application is without merit and shall be dismissed with costs following that event.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 November 2016