BBK15 v Minister for Immigration
[2015] FCCA 3220
•3 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBK15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3220 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Refugees & Migration Division) – Protection (Class XA) visa – relevant consideration – whether the Tribunal failed to apply the correct test in respect of s.36(2B)(c) of the Migration Act 1958 – whether the Tribunal’s reasons were unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2B)(c), 476 Migration Amendment (Complementary Protection) Bill 2011 |
| Applicant: | BBK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1649 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 3 December 2015 |
| Date of Last Submission: | 3 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the First Respondent: | Ms K Hooper DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5100.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1649 of 2015
| BBK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction for a Constitutional writ in respect of a decision of the Tribunal made on 13 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Pakistan and arrived at Christmas Island on 17 July 2012. On 9 January 2013, the applicant lodged a protection visa application, which the delegate refused on 5 March 2014.
The Tribunal identified the area where the applicant was born and a relocation that occurred in relation to his family in 2008, with whom he remained living until he departed in July 2012, and found the applicant’s home area to be the Kurram Agency.
The applicant was found to be a Sunni Muslim from the ethnic group Pashtun and a member of the Mangal tribe.
The applicant claimed to fear harm for reason of his village’s non-cooperation with the Taliban and by reason of his Pashtun ethnicity and being a Sunni Muslim and also claimed that he feared harm by reason of the following:
22. The applicant also told the Tribunal that Pakistan is dangerous as the situation is very bad and it is not safe and the Taliban attacked a school not long ago with many students killed.
…
28. The applicant was asked if there was anything else he would like to tell the Tribunal and responded that generally the situation in Pakistan is bad, the government cannot control the Taliban. It is dangerous in Pakistan and the Government cannot protect everyone and if he returns he will not be safe.
The grounds of the application are as follows:
1. The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration.
Particulars
a. The Tribunal accepted that there was sectarian violence between the applicant’s tribe (the Mangal tribe, which was a Sunni tribe) and Shia tribes in the Kurram Agency: Tribunal’s Decision at [45]-[49]. The import of this was that the sectarian violence it accepted occurred was based on religion (Shiite versus Sunni), membership of a particular social group (the Mangal tribe versus Shiite tribes of the Kurram Agency), or a combination thereof.
b. The Tribunal failed to take into account its findings at [45]-[49] of the Tribunal’s Decision and particularly the matters identified in paragraph (a) above (Type of Harm Findings) when finding that:
…
ii. the violence feared by the applicant was not harm involving systematic and discriminatory conduct towards him but indiscriminate violence faced by all members of the population, thereby engaging s 91R(1)(c) of the Act;
iii. the risk of significant harm to the applicant was a risk faced by the population of the country generally and not one faced by the applicant personally, thereby engaging s 36(2B)(c).
2. The Tribunal engaged in jurisdictional error by misunderstanding or failing to apply the applicable law or by failing to apply the correct test.
Particulars
a. If violence is directed towards a group based on religion (Sunni) or membership of a particular social group (Mangal tribe) or a combination thereof, and occurs predominantly in a particular area, then as a matter of law:
…
iii. it is not a risk that engages s 36(2B)(c) of the Act.
b. The Tribunal, accordingly, in making findings contrary to those identified in paragraph (a) above, having made the Type of Harm Findings, misunderstood or failed to apply the applicable law or failed to apply the correct test.
3. The Tribunal engaged in jurisdictional error by making a finding that was manifestly illogical or unreasonable.
Particulars
The findings of the Tribunal identified at particulars 1(c)(i)-(iii) above were illogical or unreasonable in the requisite sense, in view of it having made the Type of Harm Findings.
Counsel for the applicant confirmed that ground 1(b)(i) and 2(a)(i) and (ii) were abandoned.
It is convenient to deal with the grounds in the same order as they were dealt with by counsel for the applicant. Counsel for the applicant identified that the grounds advanced were addressed in relation to the Tribunal’s findings in respect of complementary protection. The Tribunal summarised the legal principles to be applied in relation to complementary protection in paras.89 to 91 of attachment A to the Tribunal’s reasons. That attachment is identified in para.5 of the Tribunal’s reasons.
Counsel for the applicant accepted that the Tribunal had correctly stated the legal principles to be applied in para.91 of the attachment. The argument advanced on behalf of the applicant in relation to ground 2 was, however, that the Tribunal must have misunderstood s.36(2B)(c).
The findings made by the Tribunal in paras.68 and 69 are as follows:
68. The Tribunal accepts that given the possible generalised and sectarian violence that may arise in the applicant’s home area in Pakistan, there are some grounds to suggest the applicant may face ‘significant harm’. The Tribunal has considered the applicant’s claim that he faces a real risk of significant harm because of generalised/sectarian violence. The applicant has no profile, religious, political or otherwise, that would make him a target for sectarian or ethnic or political related violence. The country information provided supports that violence throughout Pakistan is rampant and related to many factors. The Tribunal accepts that there is a level of insecurity across Pakistan at present involving sectarian, political and generalised violence but does not accept that the applicant will be targeted or personally face a real risk of such harm in Pakistan. After considering all the available evidence and country information provided by the applicant, the Tribunal finds the applicant would not be in a position substantially different from the general population of Pakistan.
69. The Tribunal considers that section 36(2B)(c) provides that there is taken not to be a real risk of significant harm if the risk is faced by the population of the country generally and is not one faced by the applicant personally. The Tribunal considers that this is the situation in relation to the risk of the applicant being a victim of generalised violence in Pakistan. The Tribunal in any event is satisfied that there are no substantial grounds for believing that there is a real risk he will face significant harm for these reasons on their return to Pakistan.
In substance, counsel for the applicant focused on the second-last sentence of para.68 and the reference to there being “a level of insecurity across Pakistan” and said that what was required by s.36(2B)(c) was a consideration of whether or not it was the same type of risk that was faced by the population generally and that this required the Tribunal to take into account the nature of the risk and its probability. In the present case, it was said that there had been a finding in paras.45, 46, 47, 48 and 49 that identified, in essence, a different risk from that of the general community. Those paragraphs are as follows:
45. As raised by the delegate, the Upper Kurram Agency is populated predominately by Shia Muslims while Sunnis inhabit Lower and Central Kurram. There is evidence that the Mangal tribe, which is predominately Sunni Muslim, lived in Upper Kurram close to the border with Afghanistan. There are reports that many members of the Mangal tribe in this area remain cut off from the rest of Pakistan because of the threat to them by Shia Muslims. In April and November 2007 the worst sectarian clashes in the history of Kurram Agency started in Upper Kurram and spreading through upper and lower sub divisions of the Agency. It was complicated by the support the Taliban provided to the Sunnis against the Shia population. Shia militias successively repelled Sunni extremist groups from much of Upper Kurram by 2010, forcing them to retreat to their bases in [S] and [A], with [S] being significantly affected by the conflict in Kurram, primarily due to the closure of the [T] Road connecting Parachinar with Peshawar.
46. The Tribunal located information from April 2012 indicating that no family had returned to the applicant’s village in Upper Kurram, which was a Sunni village in a Shia dominated area. While there is some information that indicates elders of the Mangal Tribe have stood up to the Taliban, there is also information that the Taliban supported the Sunni tribes in the sectarian violence against the Shia tribes. The over whelming evidence is that many Sunni families were displaced by the sectarian fighting, leaving the Upper Kurram and settling in Lower and Central Kurram where the majority of the population were Sunni Pashtuns.
47. The Tribunal accepts that the applicant’s family relocated from Upper to Central Kurram in 2008. However the Tribunal does not accept that the family relocated because they opposed the Taliban. The family relocated to a village outside of [S] which according to country information referred to below was a headquarters of the Taliban. The delegate also referred to [S] and surrounding areas being home to the Taliban. The country information also indicates that when the Shia militia drove the Taliban from the Upper Kurram, the Taliban were forced to return to their bases in [S] and [A]. The country information referred to below indicates that there was a drone attack on a Taliban camp near [S] in 2009. The Tribunal does not accept as plausible that a person in fear of the Taliban because they had come to the adverse interest of the Taliban for refusing them access through their village to the Afghanistan border, would relocate to an area known to be headquarters for the Taliban.
48. After considering the available evidence from the applicant as well as country information, the Tribunal does not accept that the applicant’s family, his father, uncle or himself have been targeted by the Taliban. The Tribunal prefers the country information from established reputable sources over that based on blogs and finds that the reasons the applicant and his family fled to [P] Village, near [S], was because of the sectarian conflict between the Shia and Sunni tribes. The Tribunal also does not accept as plausible that a person in fear of the Taliban because they had come to the adverse interest of the Taliban, would relocate to an area known to be headquarters for the Taliban.
49. Based on the country information the Tribunal accepts that the Taliban as well as other militia planted landmines in the Kurram Agency but does not accept that the Taliban specifically planted landmines around the applicant’s village because they opposed the Taliban. The Tribunal does not accept that the Taliban sent threatening letters to the villagers or opened fire on the village because the village opposed the Taliban. The overwhelming evidence is that at that time there was heavy sectarian violence in the area, affecting the whole population and resulting in the Sunni community moving to Central Kurram. The country evidence is and as referred to by the delegate, that the Mangal Sunnis were assisted in their fight against the Shia by the Taliban.
Counsel for the Applicant identified that the upper Kurram Agency area was one where, as a result of sectarian violence in 2008, the Applicant and his family relocated to central Kurram. Specifically, counsel for the Applicant focused on the fact that many families were displaced by sectarian fighting, leaving upper Kurram and settling in lower and central Kurram where the majority of the population were Sunny Pashtuns. In substance, it was submitted that the finding of the Tribunal that the risk faced by the population of the country generally in respect of generalised and sectarian violence was one in which, given the identified generalised sectarian violence in the Kurram Agency region, could not be said to be a risk faced by the population of the country generally.
The Court was taken to the explanatory memorandum to the Migration Amendment (Complementary Protection) Bill 2011. The purpose identified in that explanatory memorandum was as follows (p.1):
…to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.
Reference is also made to provisions in the explanatory memorandum that mirror in substance the language of s.36(2B)(c).
The Court was also taken to the second reading speech in relation to that Bill and the expressed object of eliminating a significant administrative hole in our protection and visa application process:
The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.
Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees—race, religion, nationality, social group or political opinion—are eligible to receive a protection visa through the usual process.
Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.
But some of these people are fleeing significant harm—be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.
These people can fall outside the categories recognised by our current protection visa process.
…
The introduction of complementary protection into Australia’s protection visa process is supported by domestic and international stakeholders. It has been recommended by the Australian Human Rights Commission and several parliamentary committees.
…
These definitions will enable Australia to meet its non-refoulement obligations, without expanding the relevant concepts in a way that goes beyond current international interpretations.
Non-refoulement obligations are not engaged in every case in which a person claims that they will suffer some type of harm if returned to another country.
In each case, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of being returned, there is a real risk that a person will suffer significant harm.
The risk of significant harm must go beyond mere theory or suspicion to give rise to a non-refoulement obligation.
A real risk of significant harm has been found in instances where there is a personal or direct risk to the specific person. This is as opposed to a general risk faced by the population of the country that is not faced personally by the person claiming protection. A personal or direct risk can be found in instances where the significant harm is faced by a broad group, so long as that harm is personally faced by the person seeking protection.
The risk must also be a real one that the person would face throughout the country. If a person can reasonably be expected to relocate within their own country to access protection, then international protection is not required.
I do not accept that the findings in paras.68 and 69 identify a misunderstanding of s.36(2B)(c) of the Migration Act 1958. The Tribunal correctly identified the law in that regard in para.91 of the attachment. The Tribunal’s reasons in paras.68 and 69 are not to be read with a keen eye for error. It is clear that in this case the risk that the Tribunal was referring to was the risk that had been propounded and advanced by the applicant as to Pakistan being dangerous and that the government could not protect everyone in Pakistan and that it was not a safe place.
It is in those circumstances that the Tribunal accepted that there was generalised and sectarian violence that may arise in the applicant’s home area in Pakistan. It is clear that the Tribunal did not confine itself to that home area in the findings that it made as a result of taking into account the country information to which it referred, identifying violence throughout Pakistan is rampant and related to many factors. It is clear that the Tribunal had, in paras.58 and 59, addressed the issue of generalised and sectarian violence relevantly as follows:
58. The applicant gave evidence that he fears harm because of acts of terrorism, the targeting of people, sectarian violence and the general lack of security in Pakistan. The Tribunal acknowledges that the applicant fears harm because of the ongoing generalised/sectarian violence in his home area in Pakistan. The Tribunal acknowledges the information provided by the applicant as well as that referred to below that supports his fear as to the generalised/sectarian violence in his home area and in Pakistan and finds that generalised violence in Pakistan as a whole is rampant and indiscriminate and indicates that the various religious, political and militant groups are regularly involved in generalised violence.
59. Where harm occurs in a context of widespread conflict, it would be wrong to require the applicant to establish a risk of persecution over and above the risks faced by others caught up in the conflict - it is not the degree or differentiation of risk that determines whether a person caught in generalised violence is a refugee under the Convention definition. However, the risk must be related to a Convention reason. The Tribunal considers the risk to the applicant that he would be harmed in an act of terrorism by the Taliban or in sectarian violence is no more than harm from generalised violence and therefore is not for a Convention related reason. In respect of the threat the applicant may face from the various militia, ethnic, religious and political groups, the Tribunal finds the applicant would not be in a position different from the general population of Pakistan, that is, that the violence faced by the applicants is the same as that faced by all members of the population. The Tribunal finds that the violence referred to by the applicant is not harm involving “systematic and discriminatory conduct” towards him but indiscriminate violence faced by all members of the population. Therefore pursuant to s91R(1)(c) of the Act, the Tribunal finds that Article 1A(2) of the Convention does not apply to any such harm.
Although skilfully presented as a misunderstanding by the Tribunal, in substance, ground 2 in my opinion is an impermissible challenge to the adverse finding of fact by the Tribunal as to the generalised and sectarian violence across Pakistan, and that was not a risk faced by the applicant personally. Ground 2 fails to make out any jurisdictional error.
In relation to ground 1, it is submitted that the Tribunal must have failed to take into account its own findings, effectively, in paras.45 to 49, in coming to the critical findings made in paras.68 and 69. The language of the last sentence at para.68 identifies the Tribunal took into account all the available evidence and country information provided by the applicant, and, in my opinion, this is not a case where it could be inferred that the Tribunal has failed to take into account the findings it made in paras.45 to 49. For the reasons I have identified, the Tribunal was addressing the fear of the applicant identified in paras.22 and 28 and there was no failure to take into account a relevant consideration. Ground 1 fails to make out any jurisdictional error.
In relation to ground 3, it was submitted that paras.68 and 69 were irrational and illogical given the identification of the sectarian violence that had occurred in the applicant’s home area. Again, in my opinion, that fails to take into account the fear raised by the applicant as identified in paras.22 and 28 of the Tribunal’s reasons. The findings made in paras.68 and 69 cannot be said to lack an evident and intelligible justification. I reject the submission that the findings are illogical or unreasonable. The findings made in paras.68 and 69 were, in my opinion, open on the material before the Tribunal. Ground 3 fails to make out any jurisdictional error.
The application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 10 December 2015
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