BBQ15 v Minister for Immigration

[2015] FCCA 3042

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3042

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – show cause hearing – bias – whether Tribunal erred in making adverse credit finding – no arguable jurisdictional error identified – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: BBQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1655 of 2015

Judgment of: Judge Street

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 13 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1655 of 2015

BBQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 25 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant appeared before the Tribunal on 21 May 2015 to give evidence and present arguments and was assisted by an interpreter.

2. The Tribunal expressed significant concerns in relation to the applicant’s credibility.  The Tribunal carefully identified the applicant’s claims to the effect that he was a Sunni Muslim from a particular location who had involvement with a radical mosque in the city and that he feared harm from people involved with that mosque, from the Pakistani authorities and from the Muttahida Qaumi Movement:  MQM. 

3. The applicant’s claims in summary are:

   7.1 He studied for a period of time at the B mosque from 2004.

   7.2 In 2006 he was approached by two men who tried to recruit him to study and go overseas to fight in conflicts. Because he was frightened he agreed and discovered these people were the ones who would order murders and bombings. He stopped attending the B mosque, but the local mullah and the leaders of the B mosque knew that he had seen sensitive information so said he had to work for them because they were concerned that he would leak the confidential information to MQM.

   7.3 The applicant also claimed that in 2006 senior people from the MQM approached him to infiltrate the B mosque and obtain information from there. The applicant refused, but they continued to approach him and threatened to kill him.

   7.4 In August 2011, the applicant’s two friends ‘K’ and ‘N’ arrived at the applicant’s house saying that they needed his help and had to stay with him. They said they were in the MQM and on the orders of the party had joined and infiltrated the Pakistan Taliban. His friends stayed for a couple of days and when they left the Inter Service Intelligent (ISI) arrested the applicant. The applicant claimed that he was detained and questions, and only released after the intervention of the local mullah. The applicant was again told he had to work for B mosque and if he did not he would be put in jail or they would ‘disappear’ him. The applicant went into hiding and left Pakistan in January 2012.

   7.5. While the applicant was in Australia he claimed that the ISI went to his house looking for him and only stopped when they were sure he was no longer in Pakistan.

   7.6 The applicant returned to Pakistan in August 2013 and was arrested at his home by the police in September. The ISI people who had previously arrested and maltreated the applicant came to the station and again said that he would have to go to B mosque, study at the madrasah and undertake the military training and if he did not they would kill him. The applicant claimed his mother approached the local mullah to have him released and the local mullah told him to leave Pakistan or he would have to work with them or he would be dead.

4. The RRT did not accept the applicant was ignorant about his particular mosque before he started attending it and that it was not until some time after that and only through records discovered on the computer that the applicant realised its violent and radical nature.  The Tribunal found the applicant’s evidence about the response of the local mullah and the leaders from the particular mosque to the applicant’s refusal to join them to be implausible for reasons set out by the Tribunal.  Those reasons cannot be said to lack an evident and intelligible justification. 

5. The Tribunal found unconvincing the applicant’s claims about money being paid, his mother’s demands to the local mullah and assurance about staying out of Pakistan.  The Tribunal expressed concern that the applicant could refuse the demands of these people and leave Pakistan twice after being released from custody on intervention of the very person whose demands he had been refusing.

6. The Tribunal did not find the applicant’s evidence about the conduct of the MQM in response to the applicant’s refusal to assist them to be credible. The Tribunal referred to the fact that, from 2006, MQM would demand that the applicant assist them but did effectively nothing in response to his refusal over the next five or more years.  The RRT did not accept the applicant would be willing to go back to Pakistan as he did, in his claimed circumstances, especially when he understood that the people stopped going to his family only because they knew he was overseas.

7. The Tribunal said that if the applicant had a genuine fear then the Tribunal did not accept he would return to Pakistan in 2013 and that he would only apply for protection in November 2013, almost two years after he first came to Australia.  The Tribunal found the applicant’s evidence to the Tribunal and his evidence in his written statement as to the basis on which the ISI harmed him in 2011 to be irreconcilable and not credible.

8. The Tribunal’s concerns about the applicant’s credibility led to the finding that the applicant was not a witness of truth and that the account of events on which his protection plans were based was false.  The Tribunal rejected the applicant’s claims in their entirety and found there was no credible evidence that the applicant had suffered harm in Pakistan and there was no credible evidence that anybody in Pakistan wanted to harm him.  The Tribunal also considered whether the applicant would suffer harm as a Sunni Mohajir from Karachi and in light of the country information found there was not a risk of the applicant suffering serious or significant harm as a result of being a Sunni Mohajir from Karachi. 

9. On 30 July 2015 a Registrar of the Court made orders fixing the matter for hearing as a show cause hearing and provided an opportunity to the applicant to file an amended application, affidavit or submissions.  No such documents were filed. 

10. The grounds of the application are as follows, and I will have the grounds set out.

    1. I will be killed by the religious fundamental and extremist group due to my affiliation with these group and deny to take orders to do unlawful acts and spread hate speech

    2. I was a member of political party A.P.M.S.O student wing of political party M.Q.M. I will be killed by M.Q.M because of my membership with A.P.M.S.O and deny to become the worker of M.Q.M and not to take unlawful orders of M.Q.M leaders.

    3. I will be prosecute and will be put behind bars for rest of my life by the law enforcement agencies in Pakistan or will be abducted, kidnapped than killed by law enforcement agencies.

11. I accept the first respondent’s submission that the grounds are an impermissible attempt at a merits review and do not identify any arguable jurisdictional error.  The applicant expanded at length from the bar table upon the claims that had been considered by the Tribunal and raised an allegation that the Tribunal was biased because of the adverse findings and asserted that the Tribunal only looked at one side of the country evidence and because the Tribunal member rejected the applicant’s credit and because the Tribunal did not refer to the applicant’s view of his own good standing and his own assessment of his character and his law‑abiding nature and his desire to help his son, who he said was in danger and was in Pakistan.

12. The applicant informed the Court that if granted a visa here, he would be able to then assist his son and bring him out to Australia.  The applicant applied for a student visa in Pakistan on 21 September 2011 and was granted a visa on 12 December 2011, valid until 25 March 2013.  The applicant first arrived in Australia on 6 January 2012 and was granted a bridging visa on 20 February 2013 when he applied for a further stay TU572 student visa which was granted on 10 April 2013.  The applicant travelled back to Pakistan on 7 August 2013 and returned to Australia on 20 October 2013.  It was on 29 November 2013 that the applicant applied for a protection visa.

13. The Tribunal referred to the applicant’s migration history in assessing the applicant’s credit.  It was a matter for the Tribunal to determine the applicant’s credit and the adverse findings on credit cannot be said to lack an evident and intelligible justification.  Given the applicant’s migration history, those adverse findings were clearly open.  The delegate had also rejected the applicant’s credit in respect of the applicant’s claims.  In relation to the applicant’s allegation made orally from the bar table that the Tribunal member was biased, bias must be clearly alleged and properly proved.

14. I do not accept that there is any arguable ground of bias identified by the applicant by reference to the adverse findings by the Tribunal or by reference to the country information to which the Tribunal referred in paras.48 to 51.  It is clear that the Tribunal also referred in para.51 to country information provided by the applicant.  It was a matter for the Tribunal to determine what weight to give that country information.

15. Adverse findings by the Tribunal are not a basis upon which an arguable case of jurisdictional error can be made out.  The adverse findings by the Tribunal and the absence of the Tribunal mentioning the applicant’s own view of his credit and good standing and absence of mention of the applicant’s desire to assist his son are not grounds by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

16. There was no arguable case of bias identified on the basis of the matters raised by the applicant from the bar table.  The assertion by the applicant that the Tribunal had not properly considered his claims is inconsistent with the Tribunal squarely addressing those claims.  To the extent it was suggested that the Tribunal did not address the applicant’s claims concerning MQM, this has no substance and is clearly contrary to the reasons of the Tribunal and the references to MQM and the adverse findings made in that regard, relevantly, in para.45.

17. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied that the application failed to disclose any arguable case and that this is an appropriate matter in which to exercise the powers under r.44.12. The application is dismissed under r.44.12.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015