AYZ15 v Minister for Immigration
[2016] FCCA 1393
•18 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYZ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1393 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – applicant from Pakistan – whether the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether the Tribunal dealt with the claim that the applicant faced significant harm by reason of his religion and previous occupation – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36(2), 359A, 424A |
| Bani Hani v Minister for Immigration & Border Protection & Anor [2016] FCCA 483 Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 Nader v Minister for Immigration & Multicultural Affairs (2001) 101 FCR 352; [2000] FCA 908 NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 |
| Applicant: | AYZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1552 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 18 May 2016 |
| Date of Last Submission: | 18 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia |
| Solicitors for the Respondents: | Mr L Leerdam, DLA Piper Australia |
ORDERS
The applicant have leave to file the outline of submissions dated 17 May 2016.
The name of the second respondent be amended to Administrative Appeals Tribunal.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1552 of 2015
| AYZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
This is an application for judicial review of a decision of the Refugee Review Tribunal[1] dated 11 May 2015. The Tribunal affirmed a decision of a delegate of the Minister made on 11 July 2013 to refuse to grant the applicant a protection visa.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
There are two issues in the proceedings. The first is whether the Tribunal failed to comply with an obligation under s.424A of the Migration Act 1958 (Cth) in respect of information, being that the applicant had told the delegate at an interview that he had actually never suffered physical harm in Pakistan. The second issue is whether the Tribunal failed to consider a claim made by the applicant; namely, that he had a personal risk of serious or significant harm by reason of him being a Shia Muslim who had worked for a Western non-government organisation, diverting youth from recruitment by extremist groups.
In order to understand the resolution of those issues, it is necessary to have regard to a brief outline of the facts.
Background
The applicant is a citizen of Pakistan who arrived in Australia on 13 April 2010 as a holder of a student visa. On 25 January 2013 he lodged an application for a protection visa making the following claims:
I am a follower of Shia Islam religion, a sect known as Shias or Shi’ites. Although Shias have always been facing persecution through Pakistan for many years, the incidents of genocides against Shi’ites have peaked in the recent past. There are many organised terrorists groups of Sunnis eradicating masses of Shias throughout Pakistan.
I left Pakistan fearing for my life as many Shias were being killed by Pakistan based Sunnis.
I was harassed throughout my life in Pakistan due to my religious beliefs. I was beaten up on many occasions by Sunni boys who were out in numbers to spread their message of terror. Their idea was to let us know to either convert to being a Sunni or get killed.
…
I approached authorities on many occasions after being beaten up or after receiving death threats, however, on all occasions they failed to act. Authorities often claim lack of evidence as their reason for not acting against Sunnis, however, the fact is that there is a total neglect of the situation which is becoming extremely unsafe for the survival of any Shia Muslims within Pakistan.
...
On 2 July 2013 the applicant attended an interview with a delegate of the Minister in connection with his protection visa. A transcript of that interview is in evidence before the Court. Relevantly, at page 26, there was the following exchange:
…
Delegate:Yep. Was there any other reason you left Pakistan?
Applicant:No, no specific reason that um.
Delegate:Did you ever experience any harm in Pakistan?
Applicant:No that time no..
Delegate:When you say not ‘at that time no’ what did you mean by that?
Applicant:like 2010
Delegate:So before you came to Australia, did you experience harm in Pakistan?
Applicant:No we don’t have any harm just only the …
Interpreter: There was discrimination between Shia and Sunni which was a common thing for someone going to Pakistan.
Delegate:So when you were living in Pakistan did you ever suffer any physical harm from anybody?
Applicant:No.
Delegate:Were you ever threatened with harm by anybody?
Applicant:Not like directly but the circumstances would sometimes indicate that always we have fear like in Muharram …
…
The delegate made his decision on 11 July 2013 to refuse to grant the applicant a protection visa. In the reasons given by the delegate there was the following passage under the heading “evidence and reasons”:
At interview the applicant said that he had not experienced harm in Pakistan but he referred to the discrimination against Shias by Sunnis as an ongoing, common feature of life in Pakistan. He indicated that he had never been harmed or directly threatened in Pakistan but that Shias there feared being unable to freely celebrate religious events such as Muharram and having to watch their backs.
…
First Tribunal hearing
On 19 July 2013 the applicant applied to the Tribunal for review of that decision. Attached to the application for review, which was filled out by hand by the applicant, was a copy of the protection visa decision record from the Department as well as a copy of the notification letter from the Department.
A decision was made by the Tribunal on 29 January 2014 affirming the delegate’s decision. That decision was set aside by an order made by this Court on 17 December 2014 and the matter was remitted to the Tribunal for further consideration.
Second Tribunal hearing
The applicant attended a hearing before the Tribunal differently constituted on 7 May 2015 giving evidence and making submissions about the issues that arose on the application for review. There was a transcript of that hearing before the Court. It appears from that transcript that the Tribunal did not discuss with the applicant the evidence given by him at the interview conducted by the delegate on 2 July 2013, at least insofar as it related to the extract from the delegate’s decision which I have set out at [6] above.
The Tribunal made its decision on 11 May 2015, affirming the decision of the delegate. The Tribunal found that the applicant was not a credible witness.
The Tribunal’s reasons were as follows at [25], [27]-[28]:
[25]Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the accounts of events he has advanced to the department and the Tribunal and on which his protection claims are based are false. At the hearing the applicant submitted a letter from the youth organisation for which he claimed to have worked in Pakistan. The Tribunal has considered the contents of that letter but the Tribunal’s concerns about his credibility remain. The Tribunal put to the applicant that available country information indicated that false documents were widely available in Pakistan and if the Tribunal was to disbelieve his evidence then it might not give weight to this document.
…
[27]The Tribunal disbelieves his claims that he was abducted, maltreated and then threatened by a Sunni extremist group; that he was harassed or discriminated against by anybody and that he was involved in fights or was assaulted by anyone in Pakistan. There is no credible evidence before the Tribunal that the applicant suffered harm in Pakistan because of his religion or on any ground. While at stages of his evidence to the Tribunal, the applicant said that he could not find work in Pakistan and broadly claimed that Shias suffer discrimination there is no credible evidence about the applicant’s employment in Pakistan and no credible evidence that he was denied employment or suffered discrimination. There is no credible evidence that any person or group in Pakistan wishes to harm this applicant. There is no credible evidence before the Tribunal as to why the applicant left Pakistan and why he does not want to return there.
[28]The applicant and his wife divorced in 2011 but she has remarried and her family are satisfied with that. The applicant said that his parents were worried and upset about the divorce but when asked why that was he recited the claimed abduction and his parents telling him that could happen again in Pakistan. For the reasons given above, the Tribunal disbelieves the applicant’s claim that he was abducted in Pakistan. The Tribunal now turns to an assessment of the risk of the applicant suffering serious harm in Pakistan because he is a Shia, the only ground on which he claimed to fear harm in Pakistan.
(Citations omitted)
However, the Tribunal went on to consider the potential for the applicant facing harm on return to Pakistan as a Shia on the basis of the country information before it. Having considered that information the Tribunal found that there was no real chance that the applicant would suffer serious harm based upon any convention ground in Pakistan and so did not meet the criteria for the grant of a protection visa found in sub-s.36(2)(a). For similar reasons, the Tribunal found that there was only a remote risk of the applicant suffering significant harm in Pakistan and so did not satisfy the criterion in sub-s.36(2)(aa).
Consideration
Ground 1
The first ground in the application is the failure to comply with s.424A. Section 424A(1) provides:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
However, the obligation under that section is subject to the exceptions found in sub-s.424A(3)(b) which states:
(3) This section does not apply to information:
…
(b)that the applicant gave for the purpose of the application for review;
…
The particulars which the applicant argues he ought to have been provided with by the Tribunal, was that before the delegate the applicant said in interview that he had never suffered harm in Pakistan, only discrimination. The Minister contends that, that was information that fell within sub-s.424A(3)(b) and therefore, there was no obligation to give such particulars. That submission has support in the decision of Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 (“Chamnam”). In that case, Sundberg J, having referred to a number of decisions including the decision of the Full Court in NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419, [2006] FCAFC 195 (“NBKT”) said at [16]:
The present case is not one of incorporation or adoption. The respondent attached the delegate’s decision (containing the home visit material) to his application to the Tribunal. Cf SZDPY [2006] FCA at [36]. Doubtless the respondent did not rely on the home visit material in the delegate’s decision. Nevertheless he “gave” the Tribunal the delegate’s decision and thus gave it the information contained in the delegate’s reasons. An applicant’s purpose or intention that the Tribunal take some information into account may explain why information not directly given to it is taken to have been given to it by him or her. Resort to an applicant’s purpose or intention has no application to a case such as the present where information is physically handed over. Adoption or incorporation cases cannot justify reading down the word “gave” so that it means “relied on”.
His Honour went on to explain what is required in order for a document or information to be given for the purpose of s.359A.
Mr Chia, who appeared for the applicant, sought to distinguish that decision by reliance upon the decision in NBKT, and in particular, the reasons given by Young J in that case at [59]-[62]. The critical passages are at [59] and [60]:
[59]These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific “information” for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.
[60]In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies.
(Citations omitted)
Mr Chia also relied upon what was said by Judge Barnes in the decision of Bani Hani v Minister for Immigration & Border Protection & Anor [2016] FCCA 483 at [176]:
In this case the information in Ms Jackson’s letters was not uncontentious factual material (see NBKT at [60]). Having regard to the very general statement and limited description of the information in the delegate’s decision and the context in which the reference to the information was communicated I am not satisfied that the information in Ms Jackson’s correspondence that enlivened s.359A(1) (beyond the fact and dates of the letters withdrawing sponsorship and the very limited information described in the delegate’s reasons) was “given” to the Tribunal for the purposes of the review. That is particularly so given the detailed content and context of Ms Jackson’s “evidence”.
In my view, this case is indistinguishable from the case of Chamnam and, that case being a decision of a superior court on appeal from this Court I am bound to apply it. For that reason, the ground will fail.
Further argument raised by Mr Chia concerned the meaning of the word “information”. The argument was, in essence, that the information question was the evidence given by the applicant at the interview rather than the record of that evidence, or the fact of having given evidence which was contained in the delegate’s reasons. While there is some ingenuity in the argument, in my view, it misunderstands what is meant by “information”.
Mr Chia relied upon the following statement by the plurality in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, [2007] HCA 26 (SZBYR) at [18], namely:
…
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
…
Mr Chia drew from that passage, the conclusion that information means the existence of evidentiary material or documentation and further elaborated the argument by saying that what was important for determining the obligation under s.424A in this case was the fact that what had actually been said by the applicant at the interview before the delegate. That argument proceeds on a misunderstanding of the passage in SZBYR and also the meaning of “information” in s.424A. The High Court, in that passage, did not mean to define information. That much is clear from the words “is related to” in the passage quoted above.
One of the earliest decisions concerning the meaning of “information” and discerning the difference between that word and opinions and doubts, or the absence of evidence was the decision of Sackville J in Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 (“Tin”). In that case, his Honour referred at [52] to a decision of Hill J in Nader v Minister for Immigration & Multicultural Affairs (2001) 101 FCR 352, [2000] FCA 908 before saying at [53]:
Hill J’s observations suggest that s 424A(1) applies when the Tribunal becomes aware of some fact or circumstance that appears to be adverse to the applicant on an issue relevant to the applicant’s case. It is not concerned with the subjective thought processes of a Tribunal member. This view of s 424A(1) is reinforced by the dictionary definition of “information”. The Macquarie Dictionary gives as the first definition:
“knowledge communicated or received concerning some fact or circumstance”.
That s 424A(1) is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal receives further support from the statutory context. Section 424(1), for example, empowers the Tribunal to “get any information that it considers relevant”. The word “information” in s 424(1) is used, clearly enough, to refer to knowledge of relevant facts or circumstances communicated to or received by the Tribunal. In my opinion, the same word is used in the same sense in s 424A(1).
His Honour went on to say at [54]:
It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s 424A(1).
That passage from Sackville J’s decision in Tin has been cited on numerous occasions and formed the basis of the reasons of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural &Indigenous Affairs (2004) 236 FCR 549, [2004] FCAFC 123 which in turn was adopted as correct by the plurality of the High Court in SZBYR.
In this case, the question is raised about what “information” the Tribunal must consider under s.424A. Here, the fact which was communicated was that, at the interview with the delegate, the applicant said that he had not experienced harm in Pakistan. The question then becomes whether that information was given by the applicant to the Tribunal for the purposes of the review and so fell within sub-s.424A(3)(b) of the Act. For the reasons I have already given, it did so and the information did not fall within s.424A(1), and there was no obligation on the Tribunal to provide particulars of it in writing to the applicant. Therefore there was no breach of s.424A and the first ground is rejected.
Ground 2
The second ground is that the Tribunal failed to consider whether the applicant had a personal risk of serious or significant harm by reason of him being a Shia Muslim who had worked for a western non-government organisation diverting youth from recruitment by extremists groups.
The claim concerning the youth organisation was first made to the Tribunal at the hearing. It is unnecessary to set it out in any detail, but it may be noted, that the applicant provided at the hearing a document purporting to be from such a group and corroborating at least his involvement in that group.
It is the basis of that evidence and claim and the document which underlies the second ground in the amended application. The difficulty, however, is that the Tribunal rejected all of the applicant’s evidence concerning the account of events relied upon by the applicant as a factual basis for his claims. So much is made clear by the first sentence in [25] of the Tribunal’s reasons.
Mr Chia sought to circumvent that fact by arguing that the claim itself had not been dealt with by the Tribunal in a manner that the Tribunal had, in fact, gone on to deal with the residual claim that the applicant was a Shia. That argument is rejected. The Tribunal’s reasons at [25] reveal that the Tribunal rejected the only factual basis upon which the claim could possibly have survived, namely, the applicant’s “account of events”. That being the case, there was nothing further for the Tribunal to do in order to deal with it for the purpose of review.
It is often explained that a claim may be dealt with by a finding of fact at a higher level of generality than the claim itself. This is one of those cases. For that reason, I find that the Tribunal did, in fact, deal with the claim that the applicant faced a risk of serious or significant harm by reason of being a Shia Muslim who had worked for a western non-government organisation diverting youth from recruitment by extremists groups. The second ground is rejected.
Conclusion
For those reasons, there’s no jurisdictional error in the Tribunal’s decision and the application must be dismissed
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 20 June 2016
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