BBT16 v Minister for Immigration

[2018] FCCA 631

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 631

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – Tribunal findings open on the evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121

Applicant: BBT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 953 of 2016

Judgment of: Judge Hartnett

Hearing date: 29 November 2017

Delivered at: Melbourne

Delivered on: 15 March 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,075.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 953 of 2016

BBT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an amended application filed 1 November 2017, seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 11 April 2016.

2. The single ground of review is as follows:-

   “The Tribunal failed to consider an integer of the Applicant’s claims when they assessed the Applicant’s application under complementary protection, as defined by section 36(2A) (sic) of the Migration Act 1958 (Cth), when determining whether there was a real chance that the Applicant would face significant harm on his return to Pakistan.

   Particular

   (a) At paragraph 46 of the decision record the Tribunal relied upon Refugee Convention grounds, when assessing the Applicant’s claim for complimentary (sic) protection.  In doing so the Tribunal considered the Applicant’s religion and membership of a particular social group when they incorrectly assessed whether the Applicant was owed protection under convention grounds. 

   b) The Tribunal fell into jurisdictional error in that it failed to assess the Applicant’s claim for complimentary (sic) protection.”

3. The decision of the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse to grant the Applicant a protection (Class XA) visa (‘the visa’).

4. The central complaint in the Applicant’s amended application is that the Tribunal erred in its consideration of the complementary protection provisions under s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

5. The Applicant relied upon written submissions filed 24 November 2017.

6. The First Respondent sought dismissal of the application and costs.  The First Respondent filed an outline of submissions, dated 14 November 2017, upon which the Minister relied. There was also before the Court the evidence as contained in the Court Book filed 23 September 2016.

Background

1. The Applicant is a citizen of Pakistan who was born and resided in Balish Khel village, Kurram Agency, Pakistan. He completed schooling to a Year 9 level prior to coming to Australia.  He also assisted his father in his employment of driving a school bus.  He claimed his family composition to include his parents, five siblings and his wife.  He had further extended family in Pakistan.  His eldest brother resides in Dubai.

2. The Applicant claimed he travelled to Iran once with his parents many years ago.  He next travelled outside of Pakistan when he fled to come to Australia.  He claims he left Pakistan on 15 June 2012.  He travelled from Pakistan via the United Arab Emirates, Malaysia and Indonesia.  He then boarded a boat to Australia arriving at Christmas Island detention centre on 5 August 2012 as an illegal boat arrival on a vessel codenamed Alpha.  On 22 November 2012, the Applicant was granted a Bridging E (Class WE) visa.

3. The Applicant claims he is a member of the Turi tribe and practises the Shia religion.

4. On 5 October 2012, the Department of Immigration and Border Protection (‘the Department’) conducted an entry interview with the Applicant. 

5. On 7 December 2012, the Applicant applied for the visa.  He provided a statutory declaration in support of his claims dated 3 December 2012 and he was represented by a registered migration agent.

6. In his statutory declaration, the Applicant broadly claimed to fear harm on the basis of generalised violence, as the Applicant lived in an area which is close to the Taliban.  He claimed that his cousins had been killed during bomb and missile attacks.  On one occasion in 2010, when the Applicant was travelling from Parachinar to Peshawar for medical treatment for his father, three cars in his village were bombed and he suspected that the Taliban, who had sent threatening letters, were the perpetrators.  The Applicant fears that upon return to Pakistan, he will be targeted and eventually killed by the Taliban.  He claimed that the Pakistani authorities could not protect him.

7. The Tribunal Statement of Decision and Reasons of 11 April 2016 (‘the Decision Record’) noted generally that for the purposes of the refugee assessment, as set out in paragraph 12 of the Decision Record:-

   “The applicant seeks to invoke Australia’s protection obligations on the basis of claiming to fear harm on return to Pakistan because of his Shia religion and his membership of a particular social group, namely as a Turi Shia from Kurram Agency.  The applicant claims to fear the Taliban and ‘separatist’ groups such as Sipah-e-Sahaba Pakistan (SSP) and Lashkar-e-Jhangvi (LeJ), who target Shias.  He said he left Pakistan due to the fighting and violence “everywhere” in Kurram Agency from 2007 until about 2011/12.”

8. On 10 July 2014 the delegate refused to grant the Applicant the protection visa, and on 21 July 2014 the Applicant applied to the Tribunal for a review of the delegate’s decision.  The Applicant was represented by a migration agent.

9. By a letter dated 21 December 2015, the Applicant was invited to appear before the Tribunal at a hearing on 1 March 2016 to give evidence and present arguments. 

10. On 29 February 2016, the Applicant through his migration agent provided a lengthy submission to the Tribunal.

11. On 11 April 2016 the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant the protection visa.

Tribunal findings

1. Under the heading “Complementary protection”, the Tribunal’s Decision Record has within it paragraphs 46 and 47 which are relevantly (in respect of the ground raised in the amended application) as follows:-

   “46. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will face serious harm from the Taliban or extremists or Sunnis in Pakistan for reasons of his Shia religion, membership of a particular social group of ‘Turi Shia from Kurram Agency’ or any other Convention reason.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from the Taliban or Sunni extremists or any other group as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan for these reasons.

   47. On the material before it, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.”

   [1] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

2. The “reasons set out above” as referred to in paragraph 46 of the Decision Record are those reasons which went to the Tribunal’s non-acceptance that the Applicant would face a real chance of serious harm for any Convention reason, which was the Tribunal’s conclusion as set out in paragraph 42 of the Decision Record. In that paragraph (paragraph 42), the Tribunal stated that it was not satisfied the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention; that is, that he did not satisfy the refugee criteria in s.36(2)(a) of the Act.

3. Given the Tribunal’s earlier findings in respect of the Convention grounds, which I shall canvass briefly hereafter, it was entirely permissible for the Tribunal to rely on its earlier findings of fact in circumstances where the underlying factual premise of the Applicant’s claim had been rejected by the Tribunal,[2] or where the Tribunal found that the risk of harm which the Applicant would suffer in the reasonably foreseeable future would not rise to the level of serious harm.  As the Tribunal correctly noted in paragraph 46 of the Decision Record, the “real risk” test imposes the same standard as the “real chance” test.[3]

   [2] SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121, 36.

   [3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, [246] (Lander and Gordon JJ), [297] (Besanko and Jagot JJ), [342] (Flick J).

4. The claims raised by the Applicant to fear harm on the basis of his religion and his membership of a particular social group were relevantly matters the Tribunal had already considered and rejected in the context of its consideration of the refugee criterion.

5. The Tribunal found:-

   a)whilst it had some concerns about the Applicant’s claim to have been travelling in a convoy from his home town in Parachinar to Peshawar in mid-2010 which was attacked, resulting in the death of people from his village and kidnapping of others by, as claimed by the Applicant, the Taliban and Sunnis, the Tribunal was nonetheless:-

   “…willing to give the applicant the benefit of the doubt and accepts that his vehicle (and others) was fired upon by the Taliban or Sunnis when he travelled to Peshawar in mid-2010.  However the Tribunal considers this was part of the generalised violence that affected many other Shia Muslims in these areas at that time, including on the Thal-Parachinar road, and does not accept that the applicant or his father were specifically targeted in the attack.”[4] ; and

   b)that it was willing to accept the Applicant’s claim that two of his cousins were killed, one due to a mortar attack in 2007 and the other as a result of a bomb blast in 2010 in Kurram Agency.  The Tribunal, however, found:-

   “…that these attacks were part of the generalised violence that affected many other Shia Muslims in these areas at that time, not a personal attack directed at either of the applicant’s cousins.”[5]

   [4] Decision Record dated 11 April 2016 at paragraph 15.

   [5] Decision Record dated 11 April 2016 at paragraph 17.

6. The Tribunal said  in reference to a further claim made by the Applicant, in paragraph 19 of the Decision Record:-

   “At the hearing the applicant claimed that six of his (paternal) uncles are village elders, which contributes to his fears on return.  Asked why, the applicant said that ‘they’ – referring to the Taliban, SSP, and LeJ – have a lot of information (about Shias), are well prepared and know about them (from Sunnis who used to live nearby and have a vendetta against them). He said he is fearful they might pick him up from the airport. The Tribunal notes that this was the first time the applicant raised this claim.  It also found his oral evidence about his uncles and his fears on the basis that they are village elders to be vague and lacking in details.  For instance he said his uncles are ‘high profile’ village elders and ‘things’ are ongoing on a daily basis – that is people are kidnapped, tortured and killed on a daily basis – but did not elaborate or provide any specific examples.  For these reasons, the Tribunal does not accept that the applicant has any uncles who are village elders as claimed and is not satisfied that he faces a real chance of serious harm from the Taliban or others on return to Kurram Agency on this basis.”

7. The Applicant’s oral submissions that the Tribunal misunderstood his claim in respect of the above is not supported by the provision of any transcript from the Tribunal hearing and nor by the evidence otherwise before the Court, in any event, could only be an error of fact not going to jurisdictional error. 

8. The Tribunal referred to other claims made by the Applicant at the hearing in paragraphs 20 to 22 inclusive of the Decision Record.  The Tribunal considered the Applicant’s answers to questions asked of him addressing matters of concern for the Tribunal to be “general and lack[ing] details” and the Tribunal did not accept that, as claimed by the Applicant:-

   “…the applicant’s extended family members have received threatening phone calls or letters from the Taliban in the past.”[6]

   [6] Decision Record dated 11 April 2016 at paragraph 22.

9. The Tribunal noted that whilst it accepted there had been a history of sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counterinsurgency campaigns, as set out in paragraph 23 of the Decision Record, the Tribunal went on to say that it did:-

   “not accept that the applicant has ever been seriously harmed in the past in Kurram Agency as a result of such violence, or specifically targeted by the Taliban, LeJ, SSP or any other extremist group.  It accepts that two of his cousins were killed in a bomb blast and mortar attack in 2007 and 2010, but is of the view that the attacks took place in the context of sectarian and militant violence in Kurram Agency and the Tribunal does not accept the applicants’ cousins were specifically targeted by the Taliban or anyone else in relation to those attacks.  Also, whilst the Tribunal accepts that the applicant and his father were part of a convoy that was fired upon by the Taliban in mid-2010, it has not accepted that they were specifically targeted. Based on the country information discussed below, the Tribunal does not accept, given the change in conditions in Parachinar since these incidents in 2007 and 2010, that there is a real chance that the applicant would be seriously harmed in any similar random, generalised violence in the reasonably foreseeable future.”

10. The Tribunal considered whether there was a real chance that the Applicant would face serious harm on the basis of his Shia religion and/or membership of a particular social group of ‘Turi Shia from Kurram Agency’ if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future.  In its consideration, the Tribunal considered the written submissions filed on behalf of the Applicant, the Applicant’s oral evidence at the hearing, and independent evidence, being country information which the Tribunal discussed with the Applicant at the hearing, as well as the concerns articulated by the Applicant regarding the situation in his home area of Kurram Agency as raised in some of the material before it.  The Tribunal set its consideration of those matters out in careful detail in paragraphs 25 to 41 inclusive of the Decision Record.  The material considered by the Tribunal also included a post-hearing submission to the Tribunal by the Applicant’s migration agent in response to key submissions in relation to relevant information contained in the various country information reports and, in particular, the copy of the Department of Foreign Affairs and Trade (‘DFAT’) reports referred to by the Tribunal and given by the Tribunal to the Applicant’s representative at the hearing, on the request of the Applicant’s representative.  The Tribunal set out its consideration of that post-hearing submission, accepting, as set out in paragraph 37 of the Decision Record, that there continues to be ongoing sectarian violence in FATA, including in Kurram Agency where the Applicant is from as detailed in the country information discussed by the Tribunal, including as set out in the representative’s submissions. In particular, the Tribunal noted an attack in Parachinar on 13 December 2015 in which at least 25 people were killed and 70 were injured.  The Tribunal said as to these matters:-

    “Nonetheless the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation in the Kurram Agency since 2013/14.  Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre.  In this context the Tribunal considers it would be premature to conclude that this attack on 13 December 2015 – the first such attack in Parachinar for almost two and a half years – marks a definite change in the security situation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Turi tribe such as the applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future.  Having regard to all of the evidence before it concerning the security situation in Parachinar and in the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.”

11. The Tribunal accepted the DFAT assessments regarding the risk of generalised violence in the FATA and accepted there was some level of risk to the Applicant in the context of generalised violence.  However, it found on the basis of the evidence before it that the risk was remote and the Tribunal did not accept there was a real chance that the Applicant would be targeted for harm based on his Shia religion, his membership of a particular social group being the Turi tribe from Kurram Agency, or for any other Convention reason.

12. The Tribunal found the chance to be remote that the Applicant would be seriously harmed by the Taliban, other Sunni extremist groups, former Sunni neighbours or anyone else by reason of his Shia religion or membership of a particular social group of Turi Shias from Kurram Agency on return to Pakistan.

13. The Tribunal was also satisfied on the evidence before it that the Applicant would be able to practise his Shia religion on return to Kurram Agency as he had in the past.  The Tribunal noted in paragraph 41 of the Decision Record that:-

    “When asked, he said he was never prevented from practising his religion in Kurram Agency because most of the people there are Shias.”

Conclusion

1. The Tribunal’s findings of fact were clearly open to it on the evidence before it.  There was no error of law.  There is no jurisdictional error attending the decision of the Tribunal and the Applicant’s single ground of review cannot be made out.

2. The application is dismissed and costs shall follow.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 March 2018