BAO16 v Minister for Immigration
[2017] FCCA 1408
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAO16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1408 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2). |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | BAO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ITOA ASSESSOR |
| File Number: | MLG 918 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 7 April 2017 |
| Date of Last Submission: | 7 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Levine |
| Solicitors for the Applicant: | Russell Kennedy Solicitors |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 918 of 2016
| BAO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ITOA ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of an International Treaties Obligations Assessment (ITOA) decision of a delegate of the Minister for Immigration and Border Protection made on 20 April 2016.
Background
The applicant was born in 1981 and is a Pakistan national. He is a Sunni Muslim of Pashtun ethnicity and originates from Haji Abad village, Buner district, Khyber Pakhtunkhwa ((KPK) formerly known as North West Frontier Province). The applicant is married with children, and his family resides in Pakistan.
The applicant lived in Malaysia from 2005 to 2010, returning to Pakistan on three occasions during this period. On 24 December 2010, the applicant arrived on Christmas Island as an Irregular Maritime Arrival. On 5 February 2011, the applicant made a request for a Refugee Status Assessment (RSA). The Statement of Claims lodged by the applicant states the events leading to his departure for Australia and his claims for protection as follows:
8. I left Pakistan because my life was in danger there.
9. Over 2 years ago Pakistan Army raided Swat valley. This was widely covered by news media. During that raid my brother was taking his wife to hospital. There was Taliban check post on the way. I do not know if my brother and his wife were killed or taken away by Taliban and are missing.
10. I went to visit my sister. It was middle of 2010. In the evening Pakistan Army happen to raid the village Ambila in swat valley. They arrested few Taliban members from the village in the valley. There was a rumour that Noorul Wahab came to the village and the Army raided. They thought I am a spy. I left my sister’s place and went back to my house.
11. After one week, once I got out of my house, a station wagon slowed down to my side, Taliban kidnapped me and I was blind folded. After 2 hours journey, we reached a muddy house. Once my blind fold was removed, the first thing I saw was blood in the house. I was frightened to death. The Taliban said you are the brother of one of the Army and you are their spy. They said we will not do anything to you but you bring your brother, we want to know the spy ring and dropped me at my house.
12. I spoke to my brother and he told me to get out, escape and save your life. I decided to leave the country and went to Malaysia.
13. While in Malaysia, there were 2 attacks on me. Once I was going on my motor bike a car coming from other side tried to hit me. Few days later the same car hit me from the rear, my bike was damaged and I was lucky to escape serious injury. In the evening someone called me and said you survived this time but we will fix you, no matter where you are in Malaysia.
14. I left for Pakistan thinking to relocate but I found out soon that Taliban were after me. My life was in danger and I travelled on false passport arranged by smuggler and left to seek protection from Australia.
15. The situation in Pakistan is bad for anybody who is against Taliban. If I return to Pakistan I have a real chance of being killed by Taliban.
16. The government in Pakistan cannot help. There are regular incidents where people who are against Taliban are being killed.
17. While I am here Taliban wrote 2 letters addressed at my home. It says you promised to bring your brother but did not. We give you a chance to surrender otherwise we will take revenge.
The applicant’s claims were assessed by the Department through several non-statutory processes. An RSA interview was conducted on 8 February 2011 and a negative RSA was made on 12 May 2011. On 24 May 2011, the applicant requested an Independent Merits Review (IMR) of that decision. The IMR interview was conducted on 9 December 2011 and an IMR recommendation was made on 13 February 2012 that the applicant was not owed protection obligations. On 2 April 2012, the applicant applied for judicial review in the Federal Magistrates Court (as it was then called). On 23 May 2012, a Post Review Protection Claims (PRPC) assessment was completed, which found that the applicant was not owed protection obligations. On 30 September 2013, the Minister conceded that the PRPC assessment was affected by an error of law.
On 15 June 2015, an ITOA was commenced to determine whether the applicant is a person in respect of whom Australia has non-refoulement obligations under the Refugees Convention.
In the applicant’s written statement prepared for the ITOA, dated 17 July 2015, the applicant made several additional submissions as follows:
a) My family is well known in the Buner area. Since my arrival in Australia, my youngest brother has been increasingly involved in anti-Taliban activities in this area. This has led to a presumption within that area that all members of my family are anti-Taliban. I additionally fear persecution on the basis that, as a member of the [applicant’s family], I am imputed with anti-Taliban political opinion.
b) I suffer from serious mental health concerns which have resulted in two hospital admissions and multiple suicide attempts, for which I am currently undergoing treatment. This increases the risk to me of suffering significant/serious harm should he return to Pakistan. …
c) My poor mental health is relevant to the questions of relocation. It is our submission that relocation to any part of Pakistan is unreasonable, in the sense it is impractical, in the context of my circumstances.
d) Pakistan’s state authorities will not or cannot provide citizens in the position of me with the level of protection they are entitled to expect according to international standards.
The applicant went on to articulate his claims for protection as follows:
Under s 36(2)(a) Migration Act, which covers non-refoulement obligations arising from Article 33 of the Refugee Convention, I am at risk of persecution for the following convention reasons:
a) my religion as a Muslim Sunni;
b) my ethnicity as a Pashtun;
c) my imputed anti-Taliban political opinion, as seen by the Taliban insurgents in the NWFP area as being a collaborator or spy for the Pakistani authorities or being critical towards the Taliban, as a result of the events surrounding the raid on Ambila village in 2010, my membership of the [applicant’s] family, my ethnicity and religion, and the fact that I originate from NWFP and am a returnee from a Western country;
d) my membership of a particular social group, being:
i) a Sunni Pashtun originating from North Western Frontier Provence (“NWFP”) or areas known to have a strong presence of Taliban insurgents; and
ii) a returnee from a Western country returning to areas with strong presence of anti-West extremist groups.
The return of me would breach s36(2)(aa) Migration Act, which incorporates the non-refoulement obligations derived from the ICCPR and CAT, for the following reasons:
a) My mental illness places me at a greater risk of suffering significant harm; and
b) My status as a failed asylum seeker from a Western country also increases my chances of discriminatorily being exposed to significant harm.
On 8 August 2015 and 11 September 2015, the applicant submitted various medical reports in relation to his mental health claims of depression and post-traumatic stress disorder.
The applicant was unrepresented at the commencement of the ITOA process, however was accompanied by a support person from the Red Cross during the ITOA interview in September 2015. At the interview, the applicant made further claims regarding his family members, including that his wife had informed him that his daughter was beaten up by a boy aged around 14 years old. The applicant claimed that his wife was unaware of the boy’s name but was told by neighbours that his father was killed by the Pakistani Army. The applicant claimed that the attack on his daughter is related to the attack on him in 2010 in Ambila in that both attacks were by Taliban supporters and inflicted because of the applicant’s perceived support for the Pakistani Army.
In January 2016, the Department contacted the applicant and requested him to clarify some information. On 23 March 2016, the Department received written submission from the applicant’s legal representative.
On 20 April 2016, the ITOA assessor found that Australia does not have non-refoulement obligations to the applicant. On 20 May 2016, the applicant applied for judicial review.
Claims by the Applicant
The relevant claims by the applicant as submitted to the ITOA assessor can be summarised as follows:
a)The applicant feared persecution by the Taliban by reason of his Muslim Sunni religion, Pashtun ethnicity, and his imputed political opinion because of his affiliation with the Pakistani Army.
b)The applicant feared persecution as a member of a particular social group of Sunni Pashtuns originating from the NWFP area and also as a returnee from a Western country.
c)The applicant feared persecution as a member of his family by reason of the harm that had been inflicted on his family members in Pakistan.
d)The applicant had developed mental health problems that would affect the reasonable practicability of him relocating within Pakistan, and for which he would not be able to obtain the required medication in Pakistan.
ITOA Assessor’s Relevant Findings
In the decision, the assessor summarised the applicant’s claims for protection as submitted in his initial visa application and also noted the applicant’s further claims made during the ITOA process as submitted in his written statement dated 17 July 2015 and the written submissions made by the applicant’s representative on his behalf dated 24 March 2016. The decision of the assessor also clearly sets out country information that was provided to the applicant throughout the ITOA interview and the applicant’s responses. The assessor made a number of conclusions based on the evidence before her.
In relation to the claims regarding his family members, the assessor concluded at p.7 of the decision:
[The applicant] claims that another brother and his wife went missing in 2008 and is unaware if they are dead or missing.
Conclusion: I am unable to deduce or conclude what has occurred in this instance as [the applicant] has not submitted any evidence.
[The applicant] claims that his daughter was beaten up by a young lad in August 2015. His wife told the claimant that she is unaware of the boy’s name but was told by neighbours that his father was killed by the Pakistani Army. [The applicant] submits that both attacks were by supporters of the Taliban and inflicted because of his perceived support for the Pakistani army.
Conclusion: I am not able to support [the applicant’s] speculation of why his daughter was attacked by a 14 year old boy; nor has there been any evidence submitted to indicate an attack took place.
At pp.14 and 15 of her decision, the assessor made a number of relevant conclusions, including:
[The applicant’s] family remain unharmed and have not been targeted for harm by the Taliban in the six years he has been absent from Pakistan.
The claimant has travelled to and from Pakistan on several occasions. He has not claimed any harassment or interest from Pakistan immigration or security umbrella upon arrival or departure from the airports in Pakistan even though he entered Pakistan on a false passport which was confiscated.
I find the claim of being kidnapped by the Taliban, released unharmed in order to surrender his brother to the Taliban to face certain death without any further threat in the past six years to his own family lacking credibility.
I find that the claim of being targeted in Malaysia on two occasions to be an embellishment of his claims.
Having claimed three targeted attacks on his life the claimant then chooses to return to the KPK, Pakistan. This indicates to me that he does not hold a fear of non-state actors in the KPK.
Ultimately, on p.16 of the decision, the assessor did not accept that:
[The applicant] was targeted by the Taliban for being a spy.
He was targeted for having a brother in the Army.
He was kidnapped by the Taliban in Pakistan.
He was targeted in Malaysia on two occasions.
He needs to relocate if returned to Pakistan.
In assessing whether the applicant had a well-founded fear of persecution for Convention reasons, the assessor summarised the applicant’s fears at p.18 of the decision as:
[The applicant] fears he will be persecuted or killed by the Taliban or Taliban sympathisers in Pakistan because of his political opinion of anti-Taliban and pro-West. Conversely he fears harm if he relocates to an area where his origins, religion and ethnicity raise suspicions that he is a member or supporter of the Taliban.
The assessor found that the harm feared by the applicant is serious and does involve systematic and discriminatory conduct pursuant to ss.5J(4)(b) and (c) of the Migration Act 1958 and, if well-founded, would amount to persecution.
In considering whether the harm feared by the applicant was well-founded, the assessor made several adverse credibility findings, stating on pp.19 and 20 of the decision:
[The applicant] claims he has a brother who has been in the army since 2000/1. I have no convincing information or evidence which confirms or denies that [the applicant] has a brother in the Pakistan Army. However if his brother’s employment was an issue I conclude that the Taliban have had many years to target all of members of [the applicant’s] family but have not done so and his family continue to live in Buner unharmed.
The Taliban thought the claimant to be a spy who caused deaths and/or arrests to local Taliban members. I give weight to the country information submitted by the claimant citing the Taliban’s responses in seeking revenge (Pashtunwali) by violent means without fear of the consequences. I find the claim of being kidnapped by the Taliban, released unharmed in order to turn his brother into the Taliban to certain death; without any further threat in the past six years to his own family lacking credence (Landinfo 2011, Afghanistan: Blood feuds, traditional law (pashtunwali) and traditional conflict Resolution; 1 November p.9-10 < <CIS22468>).
[The applicant] claims that there is a sizeable Buner population in Malaysia (100,000) and that he was targeted in a country by relatives of those Taliban killed or arrested in the Ambila raid. [The applicant] claims that those in Buner are linked with relatives in Malaysia and he has escaped harm on three occasions, however, he then returns to Mardan in the KPK Pakistan. I consider [the applicant’s] testimony of being targeted three times by the Taliban or relatives of the Taliban and then choosing to return to the Mardan in the KPK to be unpersuasive to his claimed fear or harm from Taliban in the KPK and in Pakistan as a whole.
[The applicant’s] testimony has not been substantiated by country information in relation to the Taliban’s actions against a person they consider to be a spy, improved security in the KPK with internally displaced persons returning and his own family remaining housed and unharmed in the six years since his departure.
In relation to the applicant’s claim to fear harm upon return to Pakistan as a failed asylum seeker, the assessor stated on pp.20 and 21 of the decision:
On the treatment of returnees DFAT reported it was unaware of any credible reports of mistreatment by authorities and that the main problems facing involuntary returnees will be economic; the inability to find employment or to repay debts incurred to travel abroad (CIS38A801264: Department of Foreign Affairs and Trade 2016 Country Information Pakistan 15 January 2016).
DFAT’s report of 2013 for Pakistan stated that “Failed asylum seekers may be questioned by Pakistan’s Federal Investigative Agency or other authorities on their return to Pakistan to determine whether they are wanted for crimes in Pakistan. This includes possible immigration or human trafficking offences by leaving Pakistan illegally. Unlawful emigration is punishable by a fine and up to five years imprisonment. In cases where returnees are suspected to have committed offences, they may be arrested or have to report regularly to local police stations as a form of parole (Department and Foreign Affairs and Trade 2013 Country Report Pakistan, 29 November 2013, Chapters 5.15-5.18. p.13 – CIS26783).
[The applicant] has not claimed he is wanted for any crimes or offences by Pakistan authorities. DFAT has no information to indicate that returnees are punished on their return to Pakistan (Department and Foreign Affairs and Trade 2013 Country Report Pakistan, 29 November 2013, Chapters 5.15-5.18. p.13 – CIS26783).
…
I do not consider that the claimant would be targeted for returning to Pakistan from Australia as a returnee or as a failed asylum seeker.
In relation to the applicant’s claim to fear harm upon return to Pakistan by reason of his race or religion, the assessor stated at pp.21 and 22 of the decision:
[The applicant], as a Pashtun Sunni Muslim has not claimed he has been or would be targeted for his race and/or religion in the KPK. Given the country information previously cited for Pakistan’s religious and ethnic mix I do not consider that [the applicant] would be persecuted for his race or religion upon return to Pakistan; nor has the UNHCR identified either as a potential risk profile (UNHCR: Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan 14 May 2012).
I do not consider that [the applicant] would be targeted for harm based on his race or his religion upon return to the receiving country.
In relation to the applicant’s claim that he would not be able to obtain the required medication in Pakistan for his mental health problems, the assessor had regard to the applicant’s medical reports and psychiatric history and considered detailed country information in relation to mental health care in Pakistan. At p.23 of her decision, the assessor found that:
I do not consider that [the applicant] would be denied access to any health or medical service in Pakistan for a convention reason. I consider that [the applicant] with the support of his family would be in a position to access health services and obtain medication if required in the receiving country.
In relation to the applicant’s claim to fear harm by reason of his imputed political opinion, the assessor considered detailed country information about security in the KPK. At p.27 of her decision, the assessor concluded that:
I do not accept that [the applicant] has been personally targeted from harm by non-state actors for his imputed political opinion or his family’s political opinion.
I do ot foresee that [the applicant] will be targeted for harm for a political reason if returned to Pakistan.
Ultimately, the assessor found that the applicant is not a refugee within the meaning of Article 1A of the Refugee Convention and Australia does not have a non-refoulement obligation to the applicant under the Refugee Convention.
In considering whether the applicant is owed non-refoulement obligations under the CAT and ICCPR, the assessor ultimately found:
I find that there are not substantial grounds for believing that, as a consequence of the claimant being removed from Australia, there is a real risk that the claimant will suffer significant harm. I note that the claimant previously resided in KPK Pakistan and his family remain there still. I consider he would be able to reside there again.
… For the reasons above I consider there is not a real risk that the claimant will suffer significant harm if removed to a receiving country.
Grounds for Review
The applicant pressed the first 2 grounds for review:
1. The Second Respondent made an error of law with respect to its consideration of whether there was a “well-founded fear of being persecuted” by considering whether the Applicant “would be” persecuted rather than whether there was a “real chance” that the Applicant would be persecuted.
2. The Second Respondent made errors of law by not accepting the Applicant’s claims that:
(a) in 2008, his brother and his wife went missing; and
(b) in 2015, his daughter had been beaten up by a young boy whose father has been killed by the Pakistan army;
because the Applicant did not adduce any evidence to corroborate them.
3. The Second Respondent failed to consider the Applicant’s claim that he feared persecution on the basis that he would be imputed with Western ideologies because he is a failed asylum seeker.
Ground One
The applicant submits that the assessor applied an incorrect test by determining whether the applicant “would be” persecuted, rather than whether there was a “real chance” that the applicant would be persecuted, making the following relevant findings:
I do not consider that the claimant would be targeted for returning to Pakistan from Australia as a returnee or as a failed asylum seeker. (Court Book p.303)
I do not consider that [the applicant] would be targeted for his political and/or imputed political opinion if returned to the receiving country. (Court Book p.303)
I do not consider that [the applicant] would be persecuted for his race or religion upon return to Pakistan. (Court Book p.303)
I do not consider that [the applicant] would be targeted for harm based on his race or his religion upon his return to the receiving country. (Court Book p. 304)
I do not consider that [the applicant] would be denied access to any health or medical service in Pakistan for a convention reason. (Court Book p.305)
I do not foresee that [the applicant] will be targeted for harm for a political reason if returned to Pakistan. (Court Book p.309) (emphasis added)
The applicant submits that by adopting a “would be” test, the assessor required the applicant to prove a greater likelihood of persecution than would have been required of him had the correct “real chance” test been adopted.
The assessor sets out the correct test to determine whether the applicant is a person in respect of whom Australia has non-refoulement obligations under the Refugee Convention at p.17 of her decision, recounting that:
Article 1A(2) of the Refugee Convention provides that a ‘refugee’ is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 5H of the [Migration Act 1958] provides the definition of a refugee. Section 5J provides the definition of a well-founded fear of persecution.
Section 5H(1) of the Act defines a refugee as a person who is unable or unwilling to avail themselves of the protection of their country of nationality or former habitual residence owing to a well-founded fear of being persecuted. Section 5J of the Act goes on to state that the person has a well-founded fear of persecution if there is a real chance that, if the person returned to the receiving country, the person would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 identified that a fear of persecution is “well-founded” if there is a “real chance” that the refugee will be persecuted. The High Court also identified both subjective and objective elements under the Convention, stating at 396:
The phrase “well-founded fear of being persecuted” has occasioned some difference of opinion in the interpretation of the relevant Article of the Convection. Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.
Mason CJ, in Chan at 389, said:
If an applicant establishes that there is a real chance of persecution, then his fear, assuming he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”
At 429, the Court added:
Obviously a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.
In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
The applicant argues that the Tribunal, in using a “would be” test, required a ‘more likely than not type’ of assessment, which is higher than a mere possibility and contrary to the law.
In SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44, the Full Court considered the findings of a Tribunal in respect of a similar argument.
[19] In the present case the tribunal disposed of the appellant’s fear of religious persecution as follows:
In respect of the Applicant’s claim to fear persecution for having converted to Christianity, the Tribunal acknowledges that he has been baptised and has become a faithful member of the Christian group in the Seirra Compound. Having had the opportunity to make an assessment of the Applicant and his likely conduct on return to Iran, the Tribunal does not consider the Applicant will bring his conversion to the attention of the Iranian authorities on return or subsequently. The Tribunal has closely examined the country information available, which indicates little prospect of problems with the authorities unless a returnee declares on return his new affiliation. The Tribunal has concluded that the Applicant would not suffer harm because of his conversion, if returned to Iran. The Tribunal finds that the Applicant has no basis to fear return to Iran on this ground.
[22] …the last two sentences of the paragraph quoted above suggest strongly that the tribunal considered, not whether the appellant had a well-founded fear of persecution, but whether or not it was likely that he would suffer persecution. The two questions, although distinct, are closely related. Perhaps the tribunal meant that its view as to the improbability of persecution led it to infer that the appellant’s fear was not well-founded. However, the tribunal’s apparent failure to consider the seriousness of the possible consequences of exposure suggests strongly that the tribunal did not consider whether the appellant’s fear was well founded.
[23] We accept that it is inappropriate to read the reasons with an unduly critical eye. At pages 3 and 4 of the reasons, the tribunal directed itself correctly as to the appropriate test prescribed in Guo. Nonetheless the evidence disclosed at least a theoretical possibility of the death penalty and the more than theoretical chance of discrimination in government employment. The tribunal could not determine whether the appellant’s fear was well founded without considering those matters, balancing their gravity against the relative improbability of their occurrence. These matters and the absence of any explanation as to how the tribunal proceeded from its finding that the appellant would not suffer harm to the conclusion that his fear was not well founded lead us to conclude that the tribunal failed to evaluate the objective basis of his fear. The failure to deal with the distinction between the disclosure by the appellant of his conversion and discovery of it by other means also suggests that the tribunal has not fully appreciated the difficulties posed by the evidence.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the majority (Brennan CJ, Toohey, McHugh and Gummow JJ) stated at 271-2:
The Full Court recognised, on the face of the delegate’s assessment of the first respondent’s claim, “that the delegate correctly directed herself as to the test which she had to apply”. Later in its reasons the Full Court noted:
“Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression ‘real chance of persecution’ is used in the reasons. We refer to par 4.6(4) as an example. Paragraph 12… provides another. The delegate as thus aware of the test she had to apply. Her reasons re entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.”
In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.
When the Full Court referred to “beneficial construction”. It sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language… nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed…
In a separate judgment, Kirby J also stated at 291:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slop will be found warranting the inference of an error of law.
In NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225, the Court explained that, with respect to the particular Tribunal decision:
[22] In each case, the words complained of, namely “would be carried out”, “would” and “would have”, are connected to the Tribunal’s absence of satisfaction about whether any possible harm or threat would come to fruition. While the sentences do not state what standard of satisfaction was being applied by the Tribunal, the Tribunal’s reasons, as a whole, indicate that it was applying the well founded fear standard as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
…
[25] … In circumstances where the Tribunal started and finished by stating the correct “real chance” test, the fact that it used some phraseology in between that might or might not have suggested a departure from that test is not a warrant for concluding that the Tribunal erred in law. The appellant’s contentions are, in essence, an invitation to the Court to read the Tribunal’s reasons “with an eye keenly attuned to error” (see Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2).
The applicant points to a number of factors in the decision in the present case:
a)no actual reference to a “real chance of serious harm” in the reasoning section of the assessor’s decision other than in respect to the complementary protection assessment;
b)the “would be” language is repeated throughout the decision; and
c)not once is there a reference to the “real chance” test in the reasoning section.
In order to assess the decision as a whole, it is necessary to have regard to the findings of fact made by the assessor in respect of the applicant’s claims. The “would be” language is not being applied where the decision-maker is making findings about a specific piece of evidence or a particular aspect of a claim, as occurred in NABB, rather it is being applied where the assessor is referring to final findings of discrete claims being made by the applicant.
As the applicant conceded, for the most part, the applicant’s claims of past persecution were not accepted by the assessor. However, the applicant submits that there was still evidence submitted by the applicant that may have sufficed for the assessor to find that there was a “real risk” of harm because there was a theoretical possibility.
Firstly, with respect to the applicant’s claims in relation to the harm inflicted on his daughter in Pakistan, the applicant’s oral evidence (as stated to the assessor is at p.35 of the transcript) was:
For me it would be quite difficult to make a living there because of the fear that I have that my life is under threat. I have a daughter. My daughter was going from her home to her grandmother’s house, in the village, and shew as grabbed by a Talib in the region and she was badly hit, very badly hit. Son of a Talib sorry, son of the Talib grabbed my daughter and she was very badly hurt and she had a head injury and some of her bones were broken in her body. Because of that incident, when I was calling home she could not speak to me and later I found that when she spoke she complained to me, I have this pain in the body, this injury and stuff like that.
The applicant submits that this evidence, being a recounting of the events as told to him by his wife and daughter, may have sufficed for the assessor to find that there is a “real risk” of harm because there was a theoretical possibility. However, the applicant did not actually see his daughter after she was said to have suffered from this injury and no medical evidence has been submitted to show that the daughter suffered any injuries at all. The assessor did not accept the applicant’s speculation as to why his daughter had been beaten.
Secondly, in relation to the applicant’s claim of being subject to harm by reason of being a returnee from the West, the applicant argued that the country information referred to on p.302 of the Court Book shows that there is at least some theoretical possibility to enliven the enquiry as to whether or not there was a “real risk” of harm, referring to the passage:
DFAT’s report of 2013 for Pakistan stated that “Failed asylum seekers may be questioned by Pakistan’s Federal Investigative Agency or other authorities on their return to Pakistan to determine whether they are wanted for crimes in Pakistan. This includes possible immigration or human trafficking offences by leaving Pakistan illegally. Unlawful emigration is punishable by a fine and up to five years imprisonment. In cases where returnees are suspected to have committed offences, they may be arrested or have to report regularly to local police stations as a form of parole. (Department of Foreign Affairs and Trade 2013 Country Report Pakistan, 29 November 2013 Chapters 5.15 -5.18. p.23 – CIS26783.)
It is clear that the assessor had regard to extensive country information throughout the decision and made findings with regard to all the country information generally. This particular passage must be read with the findings that follow it:
[The applicant] has not claimed he is wanted for any crimes or offences by the Pakistan authorities. DFAT has no information to indicate that returnees are punished on their return to Pakistan (Department of Foreign Affairs and Trade 2013, DFAT Country Information Report Pakistan, 29 November, Chapters 5.15 to 5.18, p.23 <C1S26783>).
The claimant has departed from and returned to Pakistan several times from 2005 – 2010 and has since been in Australia for the past five years. He claims that there are many people from Buner in Pakistan who are residing and working in Malaysia.
Therefore it would not be considered a unique or unusual experience for relatives to be returning to Buner from overseas. DFAT country information states that many Pakistanis have relatives living abroad and the claimant speaks Urdu and English which are both recognised as official languages (CIS38A01264: Department of Foreign Affairs and Trade 2016 Country Information Pakistan 15 January 2016).
I do not consider that the claimant would be targeted for returning to Pakistan from Australia as a returnee or as a failed asylum seeker.
In the context of this case there could be no more than a theoretical risk to the applicant on the facts as found by the assessor.
In relation to the applicant’s claim to fear harm on the basis of his mental health, Counsel for the applicant submitted that there was evidence from the applicant that could have allowed the assessor to find, on a “real chance” assessment, that the applicant may be subjected to harm on the basis of his mental health. The applicant relies on the submissions made on behalf of the applicant to the ITOA on p.85 of the Court Book, as follows:
Within Pakistani society there exists a serious lack of understanding surrounding mental illness. Mental illness is a highly stigmatised and is often attributed to the supernatural. Those who suffer from mental illness are viewed with intense disdain (Ahmend Ijaz Gilani et al, ‘Psychaitric Health Laws in Pakistan: From Lunacy to Mental Health’, Public Library of Science: Medicine, November 2005: Vol.2 issue.11, p.3106 accessed at last accessed 27 May 2014 and Moshin Jamil, ‘Good news for mental health’ South Asia Global Affairs’, October 2010, accessed at last accessed 27 May 2014).
The applicant goes on to say in his submissions at p.93 of the Court Book:
An article in the New Statesmen from October 2008 echoes this:
‘ECT (electro-convulsive therapy] is frequently administered unnecessarily or inappropriately, which can be life-threatening. It is not uncommon for nurses to literally chain patients to beds and leave them festering in urine-soaked sheets. Some workers in these facilities are doing the best they can, but many purporting to be psychiatrists are insufficiently quality. Even in private hospitals, there is no regulation, so potentially dangerous cocktails of drugs can be prescribed. There is a shocking level of ignorance and moral suspicion of the mentally ill, even among those who work in the hospitals.’ (Samira Shackle, ‘Pakistan’s forgotten patients’ New Statesman, 22 October 2008 accessed at last accessed 27 May 2014)
Counsel for the applicant submitted that this evidence is relevant to whether or not a person with mental illness may be denied access to care for a convention reason, because they have mental illness, and not simply due to the incapacity of the system at large in a relatively poor country
The assessor accepted that the applicant had mental health issues. The assessor also made findings that Pakistan has a lack of funding and limited capacity in their health care system. The assessor also accepted that Pakistan does not have a perfect healthcare system, but that it has been growing over the years and is multi-tiered, dealing with a range of health issues. The assessor accepted that there are no specialised institutions for the treatment of mental disorders. The assessor made a finding that medication is readily available and mental health treatment is free with free medication. Based on these findings, the assessor then rejects the claim that the applicant would be denied access to any health or medical service in Pakistan for a convention reason.
Ultimately, the assessor made findings of fact rejecting all of the applicant’s claims of having been targeted for harm prior to leaving Pakistan. On the evidence before it, the assessor was unable to make findings in relation to harm inflicted to his family members in Pakistan.
Having regard to the applicant’s evidence and country information in relation to the security situation in the applicant’s place of origin, the assessor was not satisfied that the applicant would be threatened or harmed on return to Pakistan for a Convention reason. The assessor concluded her review of the applicant’s claims with the finding that “the claimant does not have a well-founded fear of being persecuted for a Refugee Convention reason”.
When considering the decision as a whole it appears clear that the assessor did not accept that there was a factual foundation for the applicant’s claims. This was not a case where a risk was found and the Tribunal assessing whether it was a “real risk” but a case where the Tribunal rejected the claims of risk. Thus, I am not persuaded that the infelicitous language in the body of the decision provides a basis for finding jurisdictional error.
Ground 2
The applicant argued that the ITOA assessor made an error of law by not accepting two of the applicant’s claims by reason of the applicant’s failure to adduce any evidence to corroborate them.
The first claim is stated at p.7 of the ITOA decision as follows:
[The applicant] claims that another brother and his wife went missing in 2008 and is unaware if they are dead or missing.
In relation to the first claim, the assessor ultimately found that:
I am unable to deduce or conclude what has occurred in this instance as [the applicant] has not submitted any evidence.
The second claim is stated at p.7 of the ITOA decision as follows:
[The applicant] claims that his daughter was beaten up by a young lad in August 2015. His wife told the claimant that she is unaware of the boy’s name but was told by neighbours that his father was killed by the Pakistani Army. [The applicant] submits that both attacks were by supporters of the Taliban and inflicted because of his perceived support for the Pakistani army.
In relation to the second claim, the assessor found that:
I am not able to support [the applicant’s] speculation of why his daughter was attacked by a 14 year old boy; nor has there been any evidence submitted to indicate an attack took place.
The applicant argued that it is unrealistic and an error of law to require an applicant to adduce evidence to corroborate his claim, relying on MZXQU v Minister for Immigration & Anor [2008] FMCA 15. In MZXQU, the Court considered findings of a Tribunal rejecting evidence of an applicant that was not corroborated:
[52] In relation to the claims about the applicant’s uncle being arrested and imprisoned for 20 years for alleged pro-democracy activities, the Tribunal said that it had seen no evidence to corroborate the claims and then said, “Nor does it accept” certain other matters. This implies that the Tribunal did not accept that the uncle had been arrested and imprisoned for 20 years for alleged pro-democracy activities simply because there was no evidence additional to the applicant’s oral evidence and claims in his statutory declarations about his uncle. This is tantamount to requiring corroboration of the applicant’s evidence and is an error.
…
[55] In relation to the applicant’s claim to have assisted her sister in law and niece to leave Burma, the Tribunal said that it had seen no evidence to support that claim and then said, “Nor is the Tribunal satisfied” of certain matters. This implies that the Tribunal was not satisfied that the applicant had assisted his sister in law and niece to leave Burma simply because there was no evidence additional to the applicant’s oral evidence and claim in a statutory declaration that he had assisted his sister in law and niece. This is tantamount to requiring corroboration of the applicant’s evidence and is an error.
However, in that case, the Court also said that:
[50]… Equally, however, the Tribunal was entitled, on a proper basis, to reject the applicant’s bare assertions, and to reject claims that were vague or about which the applicant gave contradictory evidence.
The difficulty faced by the applicant in the present case is that he was unable to give evidence of these matters as they were not within his own knowledge. That is, he is relying on information from others and his own speculations or assumptions. These claims were mere assertions, not matters he could give evidence about. Regardless of the rules of evidence (which do not bind the assessor), logically there remained no direct evidence as to the relevant facts. A fair reading of the decision shows that the assessor did not accept the applicant’s assertions and speculations, noting (as part of the reasons) that there was no direct evidence of the facts (or of facts that would provide a circumstantial evidentiary basis). This is quite different to a decision maker proceeding on the basis of requiring corroborative evidence. I therefore find that the applicant has not made out this ground.
Ground 3
The applicant did not pursue ground 3 at the hearing and therefore I am not required to make findings in relation to this ground.
I therefore dismiss the application.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 23 June 2017
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