BAM16 v Minister for Immigration
[2016] FCCA 2378
•9 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAM16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2378 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – whether the Tribunal provided the applicant with a fair hearing – whether the Tribunal afforded procedural fairness to the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | BAM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 193 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 9 September 2016 |
| Date of Last Submission: | 9 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person. |
| Solicitor for the Respondents: | Mr A Keevers (Sparke Helmore Lawyers) |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 193 of 2016
| BAM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 April 2016 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Pakistan. The applicant arrived in Australia on 9 June 2012 as an unauthorised maritime arrival, and lodged an application for protection on 9 September 2012. On 21 November 2014, the delegate refused to grant the applicant a protection visa.
The applicant claimed to fear harm by reason of his Turi ethnicity and his Shia religion. The applicant also claimed to fear harm from the Taliban and from the Tehrik-i-Taliban Pakistan (“the TTP”). Further, the applicant claimed to fear harm by reason of his political beliefs and on the basis that he was a well-known taxi driver.
The delegate was not satisfied that there was a real chance of the applicant being persecuted for a Refugees Convention reason and was not satisfied that the applicant had a well-founded fear of harm in Pakistan. The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was real risk that the applicant would be subject to significant harm.
The applicant applied for review of the delegate’s decision by the Tribunal on 27 November 2014. By letter dated 2 December 2015, the applicant was invited to appear at a hearing before the Tribunal on 28 January 2016 to give evidence and present arguments. Prior to the hearing, the applicant’s migration representative provided detailed written submissions to the Tribunal.
On 28 January 2016, the applicant appeared before the Tribunal with his migration representative to give evidence and present arguments. The applicant was also given an opportunity to provide post-hearing submissions and any additional information on or before 11 February 2016. On 5 February 2016, the applicant’s migration representative provided supplementary submissions together with further material in support to the Tribunal.
The Tribunal identified the relevant law in an annexure to its decision record and summarised the applicant’s claims and evidence.
Relevantly, the Tribunal was not satisfied that there was an attempted kidnapping of the applicant’s brother and cousin as claimed. On the limited evidence before it, the Tribunal noted that even if there had been an attempted kidnapping, it was uncertain as to whether it was due to the Turi ethnicity of the applicant’s brother and cousin, or for any other specific reason. On the limited evidence before it, the Tribunal was not satisfied such an attempt was nothing more than a random and opportunistic attempt.
Whilst the Tribunal accepted that there is some level of risk to the applicant in Pakistan due to terrorism and generalised violence, on the basis of all the evidence before it, the Tribunal found that risk to be remote. The Tribunal did not accept, on the evidence before it, that it can be inferred from the bombing of the market place in Parachinar in December 2015, the security situation in the applicant’s home region or generally has deteriorated such that there is a real chance that any Shia member of the Turi tribe living in that area will be killed or injured in a terrorist attack in the reasonably foreseeable future.
The Tribunal found that the chance of the applicant facing serious harm from the Taliban generally, or from other Sunni extremist groups or individuals, by reasons of his Shia religion, his Turi ethnicity, his occupation as a taxi driver, his imputed political opinion in opposition to the Taliban and extremist Sunni groups on account of his Shia Muslim religion, his origins from a particular region, his extended presence in Australia, being a Western country, as an asylum seeker, and his membership of a particular social group of Turi Shias from a particular area , to be remote.
The Tribunal was not satisfied that the applicant faced a real chance of serious harm now, or in the reasonably foreseeable future, for a Convention reason. Taking into account the totality of the circumstances, the Tribunal was not satisfied that there is a real chance the applicant will suffer serious harm for any of the reasons advanced by the applicant, or for any other Convention reason, upon his return to his home area in Pakistan.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution, by reasons of his Shia religion, his Turi ethnicity, his imputed political opinion and opposition to the Taliban and/or other extremist Sunni groups on account of his Shia Muslim religion, his origins from a particular region in Pakistan, his extended presence in Australia, being a Western country, as an asylum seeker, and his membership of a particular social group of Turi Shias from a particular area, if he returned to Pakistan now or in the reasonably foreseeable future.
The Tribunal did not accept there were substantial grounds for believing it that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk that the applicant would suffer significant harm as defined by s.36(2A) of the Act. The Tribunal found that the applicant failed to satisfy the criteria under s.36(2) of the Act and affirmed the decision of the Delegate.
On 7 June 2016, a Judge of the Court made Orders providing the applicant with an opportunity to file an amended application, any affidavit evidence and submissions. No such documents were filed.
The grounds of the application are as follows:
“Ground 1
The Tribunal member fail [sic] to provide me with a fair hearing.
Ground 2
The Tribunal failed to follow rules of natural justice.
Ground 3
The Tribunal committed error of law.”
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was determining whether the Tribunal’s decision was lawful or whether the Tribunal’s decision was fair.
The applicant confirmed that he understood what had been said by the Court. The Court explained that if satisfied that the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.
The Court explained to the applicant it would first identify the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the respondent, and then hear submissions from the applicant. The applicant confirmed that he understood the nature of the hearing as explained to the applicant by the Court.
The Court then identified the evidence. At the conclusion of the evidence, the applicant indicated that he had not yet read the written submissions of the first respondent. The Court directed the interpreter to read the first respondent’s written submissions to the applicant. The reading of those submissions to the applicant was then commenced. Those submissions contained some 17 paragraphs.
When the interpreter reached paragraph 11, the applicant raised with the Court an issue regarding the standard of interpretation as he could not understand the interpreter’s accent. The Court reconvened to ascertain from the applicant the nature of the problem in relation to the applicant understanding the interpreter. The Court went through, paragraph by paragraph, the submissions through the interpreter with the applicant, and the applicant confirmed that he understood what was said by the Court. The Court is satisfied that the interpreter was able to communicate effectively with the applicant, and that the interpreter’s accent did not in any way prevent the applicant from having a real and genuine hearing before this Court.
The applicant, after raising the issue of not understanding the interpreter’s accent in respect of the reading of the submissions, did not raise any further issue in relation to the standard of interpretation. The applicant put detailed submissions after hearing the submissions of the solicitor for the first respondent. Nothing said by the applicant identified any further difficulty in communicating with the interpreter.
From the bar table, the applicant maintained that he would be harmed if he was returned to Pakistan. The applicant maintained that the finding in the Tribunal’s reasons that the security situation in his home region had improved was not correct. The applicant stated that there were recent incidents, including one on TV, where more than 20 people were harmed which demonstrates that it was not safe for him to return to Pakistan.
The applicant maintained that if it could be guaranteed that he would be safe in Pakistan, he would go back happily. The applicant submitted that the Sunnis were scattered across Pakistan, and that as a well-known taxi driver he would be targeted if returned.
The applicant identified that he had been in Australia for almost four to five years, and that this had saved his life. The applicant disagreed with the findings made by the Tribunal and said that he regarded the decision of the Tribunal as wrong. The applicant said that the country information referred to by the Tribunal was propaganda. The applicant maintained that the Tribunal’s decision was a misjudgement and, therefore, the Tribunal’s decision was unfair.
The solicitor for the first respondent submitted that what was said by the applicant from the bar table was an impermissible challenge to the merits of the application, which were for the Tribunal to determine. The solicitor for the first respondent further submitted that this Court did not have power to alter the findings of facts on the merits made by the Tribunal. I accept those submissions.
The solicitor for the first respondent made reference to the applicant’s submission that the country information accepted by the Tribunal was propaganda and submitted that it was a matter for the Tribunal to determine what country information to accept and the weight to be placed on that country information. The solicitor for the first respondent also submitted that it was a matter for the applicant to adduce material to persuade the Tribunal of his alleged fear of harm in Pakistan.
It is apparent from the material before the Court that the applicant did put submissions to the Tribunal and that the Tribunal identified that material in its reasons for decision. I accept the solicitor for the first respondent’s submission that it was a matter for the Tribunal to determine the weight it places on that country information. This Court does not have power to make fresh findings of fact in relation to events that have occurred subsequent to the hearing before the Tribunal.
Nothing said by the applicant from the bar table identified any jurisdictional error. On the material before the Court, the applicant had a real and genuine hearing before the Tribunal, and the Tribunal complied with its statutory obligations in relation to the conduct of the review. On the material before the Court, there is nothing to establish that the Tribunal failed to afford the applicant procedural fairness.
In relation to ground 1 of the application, insofar as the reference to a fair hearing is an allegation of bias, any allegation of bias must be clearly alleged and properly proved. The adverse findings made by the Tribunal are not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, fair and impartial mind to the determination of the matter on its merits.
Insofar as ground 1 alleges that the applicant did not have a fair hearing, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments. On the material before the Court, as referred to above, the applicant had a real and genuine hearing where he presented his claims and evidence. The Tribunal’s reasons reflect an orthodox approach to the conduct of the review. Ground 1 fails to make out any jurisdictional error.
In relation to ground 2, it is apparent that the applicant was able to attend a hearing to advance his claims and present submissions to the Tribunal in support of his claims. It is apparent from the Tribunal’s reasons that the Tribunal identified the applicant’s claims and evidence and engaged in an evaluation of the applicant’s evidence and relevant country information.
The adverse findings made by the Tribunal were open to it on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. On the material before the Court, the Tribunal complied with rules of natural justice in the conduct of its review. Ground 2 fails to make out any jurisdictional error.
Ground 3 is a bare allegation of an error of law. No error of law is identified by ground 3. For the reasons already given, the Court is not satisfied that the Tribunal failed to comply with its statutory obligations in the conduct of the review. The Court is not satisfied that the Tribunal acted in excess of its power in the conduct of the review. The Court is not satisfied that there was any unfairness in the conduct of the review. Ground 3 fails to make out any jurisdictional error.
For these reasons, the application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 10 November 2016
0
2