BBJ16 v Minister for Immigration
[2016] FCCA 2521
•29 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBJ16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2521 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) Visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal correctly applied the real chance test – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | BBJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1116 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 29 September 2016 |
| Date of Last Submission: | 29 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges Stephen Hodges Solicitor |
| Solicitors for the Respondents: | Ms B Griffin Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $3,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1116 of 2016
| BBJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision by the Administrative Appeals Tribunal (“the Tribunal”) made on 7 April 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was held to be a citizen of Pakistan. The applicant worked as a sea crewman and arrived in Australia on 22 February 2013 as the holder of a Maritime Crew visa (Subclass 988). On 22 February 2013, the applicant deserted the ship at Sydney, and his visa ceased on 22 February 2013.
The applicant was detained at a detention centre, and on 18 March 2013 applied for a Protection (Class XA) visa. Although the application was deemed valid, the application was subsequently withdrawn on 3 April 2013. A second application for protection on 15 April 2013 was initially deemed invalid. On 11 July 2013, the applicant made a valid application for a protection. The applicant claimed to fear harm from a local Mullah whom the applicant was speaking out against, as well as from the Taliban. The applicant claimed that he was part of a group which assisted the government in identifying Taliban members, so that the government could destroy the homes of the Taliban members.
The applicant claimed that his life and that of his family were threatened, and that one of his friends was killed when he went to visit them. The applicant claimed that he was part of a village Defence Committee and as such was targeted by the Taliban and would be in danger if he were to return to Pakistan. The applicant claimed that his name was included on a broadcast which asked people to kill those mentioned on the list. The applicant claimed that he had not applied for protection earlier as he was hoping things in Pakistan would settle down and he could return.
The Delegate’s Decision
On 15 January 2014, the delegate refused the application for a Protection (Class XA) visa. The delegate identified certain credit concerns in relation to the applicant’s claims. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason, and found that the applicant’s fear of persecution as defined under the Refugees Convention was not well founded. The delegate was not satisfied that Australia had protection obligations to the applicant because there were substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.
The Tribunal’s Decision
On 24 February 2014, the applicant lodged an application for review. By letter dated 30 October 2015, the applicant was invited to attend a hearing on 10 December 2015. Prior to that hearing, submissions dated 30 November 2015 were provided by the applicant’s migration representative to the Tribunal. The applicant appeared on the hearing date to give evidence and present arguments and was assisted by a migration representative. The applicant was also given a further opportunity to put on further material after the hearing, up to 15 January 2016.
Further post-hearing submissions were in fact provided in relation to other information on 5 February 2016 and on 29 February 2016. The Tribunal correctly identified the relevant law in Appendix 1 which was incorporated within the reasons. The Tribunal identified the applicant’s claims and evidence. The Tribunal expressed concerns in relation to the applicant’s credibility and identified reasons in support of its concerns as to the applicant’s credibility and reliability as a witness.
The Tribunal found that having considered the evidence and information before it, the chance or risk of a person in the applicant’s circumstances, with his profile, characteristics and attributes, coming to the adverse attention of the Taliban or Tehrik-e Taliban Pakistan (“TTP”) or Tehrik Nifaz-e-Shariat-e-Muhammadi (“TNSM”) or any other person or group for reasons of his past work or association with the village defence committee in 2008, is remote and farfetched. The Tribunal did not accept that there is a real chance the applicant would suffer serious harm for reasons of his past participation and association in a village defence committee at a particular location in 2008.
The Tribunal found that it did not accept there is a real chance the applicant would suffer serious harm for reasons of his future participation or association in a village defence committee in a particular location. The Tribunal made reference to the applicant’s claims in relation to his association with the Awami National Party (“the ANP”) and his alleged activities in that regard. The Tribunal found the applicant’s claims in that regard to be based on mere speculation and found that the chance of the applicant suffering serious harm for reasons of his ANP membership and/or low-level support and assistance to the party, including during election campaigns and on election day, was remote.
The Tribunal did not accept there is a real chance the applicant would suffer serious harm because of that membership and/or support in the reasonably foreseeable future. The Tribunal did not accept that in the past the applicant had been targeted for harm for reasons he had lived and worked outside his home area or outside Pakistan. The Tribunal found the chance of the applicant being subjected to serious harm in the reasonably foreseeable future was remote.
The Tribunal found the chance of the applicant suffering serious harm in the ways identified by the Tribunal for reasons of the applicant working outside his home area, and the chance of the applicant suffering serious harm, to be mere speculation. The Tribunal did not accept that there is a real chance of the applicant facing serious harm in one or more of those ways in the reasonably foreseeable future.
The Tribunal considered the applicant’s claims found whether considered combination, the fact of the applicant being a Pashtun Sunni Muslim, from a particular location, who is a low-level supporter and a member of the ANP and a person who was briefly involved in a village Defence Committee in 2008, who has spent the past 20 years outside his home area, who owns three shops in a particular area, would not attract the adverse attention of the Taliban or TTP or other extremist militant or criminal groups or persons, if he returns in the reasonably foreseeable future.
The Tribunal took into account those cumulative factors and did not accept that there is a real chance the applicant would face persecution for these reasons if he returns to Pakistan in the reasonably foreseeable future. The Tribunal did not accept there is a real chance the applicant would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his particular political opinion, if he returned to his home area in a particular location in the reasonably foreseeable future.
The Tribunal found the applicant did not have a well-founded fear of persecution. The Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is real risk he would suffer significant harm. The Tribunal found that the applicant had failed to satisfy the criteria under s.36(2) of the Act and affirmed the decision of the delegate.
Proceedings Before this Court
On 22 June 2016, the Court made orders providing the applicant with an opportunity to file affidavit evidence, an amended application and submissions. No such documents were filed. At the commencement of the hearing today, Mr Hodges, the solicitor for the applicant, sought an adjournment on the basis that the applicant was not ready. No evidence was adduced in support of that application for adjournment to explain the reasons in detail why the applicant was not ready. The first notice of a request for adjournment to the first respondent was given at today’s hearing. Mr Hodges indicated that other than relying upon the particulars provided in the application, he was not in a position to present further submissions.
Mr Hodges explained that it was a practical matter that gave rise to this position and not one of his own health, or making. If there had been circumstances relating to the health or ability of the solicitor to participate, the Court would have been likely to grant an adjournment. Mr Hodges made clear that that was not the position in the present case.
The adjournment was opposed by the first respondent given that the matter was fixed for hearing on 22 June 2016 and an opportunity provided to the applicant to put on material. I am not satisfied that there is any proper basis to grant the adjournment of the hearing that was fixed for today. Further, an adjournment in the circumstances of the present case is only likely to unnecessarily add to the cost to the parties and utilise limited Court time. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons that the adjournment was refused.
The grounds of the application are as follows:-
Ground 1
The Tribunal failed to consider or provide clear reasons for the basis of the decision not to accept the opinion of a reliable expert.
PARTICULARS
(i)At [44] the Tribunal stated,
... Dr Menendez has treated the applicant with anti-depressant medication. He notes the applicant 'is terrified about the prospect of returning to Pakistan' and would be fearful for his safety and his family's safety wherever he is living in Pakistan' and that it is likely his mental health will deteriorate if was forcibly returned and that he will require ongoing mental health care in Pakistan.
(ii) The reliable expert being a Consultant Psychiatrist inter alia raised two critical concerns there are as follows,
i. The Applicant's mental health will deteriorate if forcibly returned to Pakistan.
ii. If returned to Pakistan the Applicant would need ongoing mental health care in Pakistan.
(iii) The Tribunal's Guidelines on the Assessment of Credibility states,
... The tribunal should not substitute its own lay opinion for that of a reliable expert. If the tribunal does not accept the conclusions or opinion of an expert or the information upon which the opinion is based, the tribunal must provide clear reasons for the basis of the decision not to accept the evidence
(iv) At [34] the Tribunal notes that the Applicant stated,
... he said his brain had stopped working ....
(v) It is submitted that though at [66} and [78] the Tribunal may have considered some of the comments made by the Consultant Psychiatrist, regarding the Applicant's "major depressive illness", clearly the Tribunal failed to consider or provide clear reasons for not accepting the reliable expert's opinion regarding the likelihood of the Applicant's mental health deteriorating if he is returned to Pakistan and the need for ongoing medical care in Pakistan.
Ground 2
The Tribunal failed to consider its own factual findings when applying the forward looking real chance test.
PARTICULARS
(i) At [75] the Tribunal accepted that the Applicant was a member of a village defence committee in Deolai.
(ii) At [77] the Tribtmal accepted that the Applicant was a member of the ANP in the Swat Valley and that the Applicant was actively involved in ANP activities in the past.
(iii) At [71] the Tribunal accepted that The Applicant was opposed to the Taliban's activities like other majority residents in the Swat Valley which is what motivated him to join the local defence committee "and engage in associated activities".
(iv)At [76] the Tribunal accepted that the Applicant's cousin was killed as a result of his involvement with a village defence committee in 2009.
(v) At [88] the Tribunal accepted that if the Applicant is returned to Pakistan he would engage in village defence committee activities in the future.
(vi)At [83] the Tribunal refers to independent country information which indicated that
" ... security in Swat was reported to be deteriorating .... with militants still active although not operating openly ... and that the TTP was re-emerging in the upper areas of Swat .... and that attacks on members of the peace committees in October 2012 was evidence of the presence of the Taliban
and increasing militancy in Swat Valley"
(vii) At [88] the Tribunal stated,
... However, as noted above, although there are reports in recent years of extremist groups such as the Taliban conducting incursions into the Swat Valley and targeting members of village defence committees, the information indicates that such attacks have been mostly directed at high profile leaders of such committees
(viii) On the basis of the Tribunal's reasoning at [88] it could be implied that while most attacks 'in the Swat Valley are being directed at high profile leaders of village defence committees, some attacks could be directed at persons like the Applicant who may not be considered a high profile leader of such committees.
Ground 3
The Tribunal appears to have identified a cognizable Particular Social Group (PSG) at [71], however went no further to assess if the Applicant faces a real chance of Convention related harm due to his membership of a PSG.
PARTICULARS
(i) At [71] the Tribunal stated
... While the Tribunal accepts that, like the majority of local residents in Swat Valley, he was opposed to the Taliban's activities in the area, and was concerned by their presence and the impact it had on his family and their way of life .... which is what motivated him to join the local defence committee and engage in associated activities ....
(ii) The Tribunal erred as it failed to assess if the Applicant faces a real chance of Convention related harm due to his membership of a “PSG of local residents in Swat Valley who joined local defence committees because they were opposed to the Taliban's activities"
(Errors and emphasis in original)
In relation to Ground 1, one of the documents provided in the post-hearing submissions was a report by a psychiatrist, Dr Mendes. It is apparent that the Tribunal in its reasons took such report into account. The Tribunal expressly referred to part of the report referring to antidepressant medication being taken by the applicant and the prospect of deterioration in his health if returned to Pakistan.
The Tribunal noted that the migration representative submitted that the psychiatrist’s opinions were relevant in the assessment of whether it would be reasonable for the applicant to relocate. This is not a case where the Tribunal made a relocation finding. The Tribunal did take the psychiatrist’s evidence into consideration in assessing the applicant’s credit. However, the Tribunal did not accept that those factors explained, or excused the concerns which cumulatively have led the Tribunal to find the applicant was an unreliable witness.
I accept the first respondent’s submission that it was a matter for the Tribunal to decide what weight to give the medical evidence. This is not a case where it can be said that the Tribunal failed to consider relevant material. The adverse findings made by the Tribunal in relation to the applicant’s credit were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 1 fails to make out any jurisdictional error.
In relation to Ground 2, the Tribunal correctly identified the relevant law in relation to the real chance test and in its reasons applied the real chance test. The Tribunal took into account the applicant’s evidence in relation to his membership and activities within ANP and also his involvement in the village defence committee.
The Tribunal referred to the independent country information and the adverse findings in relation to the applicant’s claims and evidence were open. I am not satisfied that the Tribunal failed to properly apply the relevant law. I find that the Tribunal correctly applied the real chance test. Ground 2 is in substance, an impermissible challenge to the adverse findings made by the Tribunal. Ground 2 fails to make out any jurisdictional error.
In relation to Ground 3, I accept the first respondent’s submission that the applicant did not claim a fear of persecution by reason of being a member of a particular social group and that no such claim arose on a fair reading of the material before the Tribunal. The Tribunal did address the applicant’s claims in relation to his involvement in the village defence committee. There was no jurisdictional error by reason of a failure of the Tribunal to address a claim that was not advanced. Ground 3 fails to make out any jurisdictional error.
The application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 October 2016
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