BCH15 v Minister for Immigration

[2016] FCCA 3116

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCH15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3116

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for Protection (Class XA) visa – no jurisdictional error – application dismissed.

Cases cited:

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

First Applicant: BCH15

Second Applicant: BCI15

Third Applicant:  BCJ15

Fourth Applicant:  BCK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1391 of 2015

Judgment of: Judge Hartnett

Hearing date: 12 September 2016

Delivered at: Albury

Delivered on: 2 December 2016

REPRESENTATION

Counsel for the Applicants: Mr Hosking

Solicitors for the Applicants: Victoria Legal Aid

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1391 of 2015

BCH15

First Applicant

BCI15

Second Applicant

BCJ15

Third Applicant

BCK15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The First Applicant (‘the Applicant’) and other Applicants seek judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 25 May 2015. The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant and Applicants Protection (Class XA) visas (‘the visas’). The application seeks relief in the form of constitutional writs against the Tribunal decision.

2. At the hearing of this matter, the Applicant and Applicants relied upon ground 1 as set out in the application for judicial review filed 19 June 2015. Ground 2 was not pressed by the Applicant. Ground 1 is as follows:-

   “1. The Tribunal, constructively, failed to exercise jurisdiction, in that:

   a. The Tribunal reasoned that if the applicant’s claim were true, Messrs Sardar and Asher would be familiar with all the details of the December 2012 attack;

   b. The Tribunal found that Messrs Sardar and Asher were not familiar with the details of the December 2012 attack, in that:

   i. Mr Asher thought that the attack occurred on 9 December 2012, whereas the applicant claimed that it occurred on 10 December 2012.

   ii. Mr Sardar thought that the applicant had returned to Pakistan in 2013, rather than late 2012.

   iii. In the oral hearing, Mr Sardar thought that the attack was by the PML-N, whereas in a written statement he said the attack was by the Taliban.

   iv. Mr Sardar mentioned that the police had initially advised the applicant not to make a FIR, and the Tribunal noted that the applicant did not say that the police had “threatened” him.

   v. Mr Sardar mentioned that the applicant had been threatened after the attack, whereas the applicant did not claim any such threats.

   c. On the basis of these discrepancies, the Tribunal made an adverse credibility finding against the applicant in relation to the claimed December 2012 attack, and purported to find that the December 2012 attack did not occur in the circumstances claimed (ie, being for a political motivation).

   d. However, it was claimed, or it was obvious on the material, that each of these discrepancies were explicable, and the Tribunal did not deal with the possible explanations for these discrepancies, namely:

   i. That Mr Sardar thought that the applicant had returned to Pakistan in 2013,rather than late 2012 may have been irrelevant to the applicant’s credibility, as the discrepancy may have been the result of a natural deterioration in memory.

   ii. That Mr Sardar said at the oral hearing that the attack was by the PML-N, whereas in a written statement he said the attack was by the Taliban, may have been irrelevant to the applicant’s credibility in that the applicant never claimed to have known who his attackers were.

   iii. That Mr Sardar thought that the police had initially advised the applicant not to make a FIR, whereas the applicant did not say that the police “threatened” him, may have been irrelevant to the applicant’s credibility in that he never claimed anything contrary to this suggestion by Mr Sardar or the suggestion by Mr Sardar may have been the result of a natural deterioration in memory.

   iv. That Mr Sardar mentioned that the applicant had been threatened after the December 2012 attack, whereas the applicant did not mention any such threats, may have been irrelevant to the applicant’s credibility, as the suggestion by Mr Sardar may have been the result of a natural deterioration in memory.

   v. That Mr Asher thought that the December 2012 attack occurred on 9 December 2012, whereas the applicant claimed that it occurred on 10 December 2012, may have been irrelevant to the applicant’s credibility, as the discrepancy may have been the result of a natural deterioration in memory.

   e. In the premises, as the critical issue was the credibility of the claimed December 2012 attack, the failure to deal with these unexplored possibilities is such that the Tribunal has failed to “review” the decision of the delegate: Minister for Immigration v SZRKT [2013] FCA 317.”

3. The Applicant and Applicants relied upon an affidavit of Ms Carina Ford, Solicitor, affirmed on 19 June 2015, written submissions filed on 8 August 2016 and a list of authorities filed on 8 September 2016.

4. The First Respondent relied upon a response to application filed 1 July 2015 and written submissions dated 26 August 2016. The First Respondent sought dismissal of the application for judicial review together with an order for costs.

5. The Court also had before it the evidence as contained in the Court Book filed 15 April 2016.

History

1. The Applicant is a Pakistani national and arrived in Australia on 25 January 2011 holding a Student (Subclass 572) visa. The Second and Third Applicants arrived in Australia on the same day. The Second Applicant is the Applicant’s wife and the Third Applicant is the Applicant’s daughter. The Fourth Applicant (a son) was born in Australia.

2. On 15 March 2013, the Applicants lodged an application for the visas. The only claims made by the Applicants were those of the Applicant. The Applicant’s wife and children made no specific claims. They are joined to the application on the basis that they are members of the Applicant’s family unit. The Applicant claimed, as accurately set out in the Applicants submissions, that:-

   a)he was an active member of the Pakistan People’s Party (PPP) prior to leaving Pakistan for Saudi Arabia in 1996;

   b)between 1996 and 2011, he split his time between Saudi Arabi and Pakistan, continuing his political involvement when in Pakistan;

   c)in 2007, the Applicant worked as a body guard for Mr Sardar Saleem Haider Khan (‘Sardar’), who was a Pakistan People’s Party member of the National Assembly, and went on to be the Minister for Defence of Pakistan between 2008-2013;

   d)in December 2012, the Applicant returned to Pakistan to visit his mother, who was then unwell. During this visit, the Prime Minister of Pakistan was to give a speech in the Attock district. The Applicant assisted in preparations for the visit and acted as a driver for the city president, and PPP member, Mr Asher Hayat Khan (‘Asher’);

   e)on 9 December 2012, the Applicant was driving to Bafad for a meeting about arrangements for the Prime Minister’s speech when he was stopped by 3 men wearing masks. The men asked his name and if he lived with Sardar. He replied in the affirmative, and was subsequently attacked with a knife and received blows to his head. The Applicant was threatened to stop supporting Sardar, lest he be killed.

3. On 8 November 2013, a delegate of the Minister refused the Applicants’ application for the visas. The Tribunal affirmed the decision of the delegate on 15 August 2014. That decision of the Tribunal was quashed by the Federal Circuit Court by consent order. The matter was remitted to the Tribunal for re-determination according to law.

4. On remittal, both the Applicant and Second Applicant appeared before the Tribunal on 31 March 2015 and 27 April 2015 to give evidence and present arguments. Sardar and Asher also gave evidence by telephone on 27 April 2015 and from Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. Written submissions and further written submissions were lodged with the Tribunal on behalf of the Applicants, both between the two hearing dates and following the hearing conclusion in part in response to the Tribunal inviting comment on an updated DFAT Country Report for Pakistan On 25 May 2015, the Tribunal, at its second hearing, affirmed the decision of the delegate.

5. The First Applicant claimed protection on the basis that he feared persecution in Pakistan because of his actual and imputed political opinion and his membership of a particular social group, each arising out of his membership and work for the Pakistan’s People Party (PPP), the People’s Youth Organisation and his former employment as a bodyguard by the former PPP Minister of State Defence, Mr Sardar Saleem Haider Khan.

The Tribunal Decision

1. The Tribunal accepted that Sardar and Asher were who they claimed to be, that being a current member of the Pakistani National Assembly and former Minister for Defence (Sardar), and the President of the Pakistan People’s Party Parliamentarian (Asher).

2. The Tribunal accepted a number of the Applicant’s claims. These are accurately summarised by the First Respondent as follows:-

   a)the Applicant had been a member of the PPP since 2 March 1993;

   b)the Applicant undertook voluntary activities for the PPP in Pakistan until August 1996 when he moved to Saudi Arabia;

   c)the Applicant may have had some involvement with the PPP when he returned to Pakistan while working in Saudi Arabia, and in this capacity was known to Sardar and Asher;

   d)the Applicant worked in a voluntary capacity for the PPP in Hasan Abdul in Pakistan;

   e)the Applicant was approached to become vice president of the People’s Youth Organisation, being a youth wing of the PPP, in July 2008 and was appointed to that position on 1 January 2009;

   f)the Applicant knew and worked for Sardar when he was Minister of State for Defence, and from about July 2008 to January 2011, would work as required whenever the Applicant was in Pakistan; and

   g)the Applicant returned alone to Pakistan in December 2012 to visit his ill mother.

3. The Tribunal said at paragraph 15 of the Decision Record the following:-

   “Having considered all of the evidence and other material before it, the Tribunal remains concerned about the credibility of the applicant’s claims and has formed the view that parts of the applicant’s evidence should not be accepted. The Tribunal’s particular findings are set out below.”

4. The Tribunal did not accept was that the Applicant had been attacked in December 2012. The Tribunal did not find credible the Applicant’s claims to this event. The Tribunal rejected this claim on the basis that at that time, the Applicant only had limited involvement in the PPP and had been living overseas; that the Tribunal doubted whether the Applicant would resume PPP activities upon his return to Pakistan at that time; that the Tribunal doubted that the Applicant would be targeted “little more than a week after arriving in that country”; and that there were inconsistencies between the evidence of the Applicant and the evidence of Sardar and Asher. This last point was not the only or central finding of the Tribunal as contrary to the argument of the Applicant that it was and thus there had been a constructive failure to ‘review’ by the Tribunal.

5. Paragraphs 35 to 39 of the Tribunal’s Statement of Decision and Reasons dated 25 May 2015 (‘the Decision Record’) are relevantly as follows:-

   “35. … the Tribunal does not accept the applicant’s account of an attack upon him during that visit. While the Tribunal has accepted that the applicant had some involvement with the PPP and the PYO in Pakistan over a long period, it considers that involvement to be limited given its finding that he lived outside of Pakistan for a combined total of ten years between 1996 and January 2011. The Tribunal notes that at the time the applicant claims to have been attacked, he had been living in Australia for almost two years when he returned to visit his sick mother. The Tribunal is concerned about the credibility of his claims to have resumed his PPP activities almost immediately upon arriving in Pakistan and to have been identified and attacked in Pakistan by unknown gunmen little more than a week after arriving in that country.

   36. The Tribunal’s concerns in this regard are exacerbated by the inconsistencies in the evidence before the Tribunal as to the claimed attack on 10 December 2012. Mr Sardar Saleem Haider Khan told the Tribunal that he thought the applicant had returned in 2013 for a period of about 3-4 months during which time he was attacked. The applicant’s evidence, consistent with department movement records, is that he returned to Pakistan for just over three weeks in December 2012 and was attacked on 9 December 2012. At hearing Mr Sardar Saleem Haider Khan told the Tribunal that members of PML-N instigated the attack on the applicant, however in his written statement dated 9 April 2015 Mr Sardar Saleen Haider Khan states that while the gunmen who attacked the applicant were unknown, PPP office holders were at the time being threatened by the Tehrik-e-Taliban who are against democracy and see the PPP as an open minded, liberal and secular party.

   37. Mr Sardar Saleem Haider Khan stated that when the applicant went to the police station to report the attack, the police would not help him or take his statement and in fact told him he should not go ahead with his complaint. The applicant did not suggest in his own evidence that he was threatened by the police, rather he said that a friend took him to the police station where a constable assisted him to hospital and has produced an FIR report that he claims was issued by the police. Mr Sardar Saleem Haider Khan also gave evidence after the applicant tried to report the attack (sic) the people who had attacked him threatened him a second time, claims not made by the applicant in his own evidence. When asked to comment on the apparent inconsistencies, the applicant stated that Mr Sardar Saleem Haider Khan was a busy man and couldn’t be expected to remember all the details of something that occurred in 2012. The Tribunal rejects the post-hearing submission that the threat referred to in Mr Sardar Saleem Haider Khan’s evidence is the threat described in the FIR report as occurring at the same time as the attack, noting that Mr Sardar Saleem Haider Khan’s evidence referred to a threat made to the applicant after the attack was reported.

   38. Mr Asher Hayat Khan gave evidence that the applicant was attacked on 9 December 2012, while the applicant’s evidence is that it took place on 10 December 2012. The applicant told the Tribunal at the hearing that he went straight to the police station after the attack on 10 December 2012 and they assisted him to hospital where he had stiches and remained for a couple of hours. However the FIR submitted to the applicant indicates that the incident was not reported to 13 December 2012.

   39. These matters, together with the Tribunal’s broad concerns about the plausibility of the applicant’s claims to have been attacked shortly after his arrival in Pakistan cause the Tribunal not to accept that the applicant was attacked as claimed in December 2012. In making this assessment the Tribunal had regard to the FIR submitted by the applicant as well as the unsourced news items and their translations undertaken in Pakistan which report that representatives of the PPP condemned the attack on the applicant on December 2012. The contents of these documents do not outweigh the Tribunal’s concerns about the applicant’s credibility and the Tribunal gives them little weight. While the Tribunal accepts the contents of that medical evidence submitted by the applicant as to the injuries he claims to have received in Pakistan in December 2012, it does not accept that the injuries referred to were inflicted upon the applicant in the circumstances he claims. For that reason the Tribunal does not accept them to be predictive of any future harm to the applicant should he return to Pakistan, now or in the foreseeable future.”

6. The Tribunal concluded that the First Applicant did not have a well founded fear of persecution for any Convention reason if he were to return to Pakistan and that he did not qualify for complementary protection. The Tribunal did not accept that the First Applicant’s work with the PPP placed him at a greater or specific risk of harm.

Consideration

1. The only ground of review pressed by the Applicants is that the Tribunal failed to exercise its discretion to conduct a “review” because it did not evaluate the possibility that there were discrepancies in Sardar’s evidence and that of the Applicant because he (Sardar) was a busy person who could not be expected to remember the details of events in 2012. While it is noted in paragraph 37 of the Tribunal’s Decision Record (as above) that the Tribunal mentions this in general terms, the Applicant argued that there is no evaluation of the argument.

2. While the Minister accepts that the Tribunal did not expressly deal with this explanation, it does not follow that the Tribunal committeed jurisdictional error. The significance of the Tribunal’s failure to expressly deal with his explanation must be evaluated against the context of well-established principles.

3. As Robertson J explained in Minister for Immigration and Citizenship v SZRKT:-

   “In my opinion there is no clear distinction in each case between claims and evidence… The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reasons that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

   …whether the Tribunal is obliges to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence includes first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.”[1]

   [1] (2013) 212 FCR 99 at [111]-[112].

4. In determining whether the Tribunal failed to consider a matter, the Full Court of the Federal Court gave the following guidance in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:

   “It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.   Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[2]

   [2] (2003) 236 FCR 593 at [46]-[47].

1. The Tribunal had concerns about the credibility of the Applicant. On a fair reading of the Decision Record it is apparent those concerns were central to the Tribunal’s rejection of some of the claims of the Applicant and in particular the central claims made by him as to his attack in December 2012. Even had the Tribunal not considered, and I find it did as set out in paragraph 37 of the Decision Record as referred to earlier in these reasons, the Applicant’s explanation for the inconsistent evidence given by one or both of his witnesses, such evidence was not cogent evidence. The Tribunal did not fail to consider the claims and integers of the claims made by the Applicant. The primary reason for rejecting the First Applicant’s claim about being attacked in 2012 was that the Tribunal doubted his credibility. Other reasons merely “exacerbated” the Tribunal’s concerns.

2. I accept the First Respondent’s submissions as set out in paragraph 30 of the submissions that the Tribunal’s doubts about the First Applicant were “exacerbated” by inconsistencies with Mr Sadar Saleem Haider Khan’s evidence. But the Tribunal’s doubts were also exacerbated by inconsistencies in the evidence of Mr Asher Hayat Khan. In circumstances where the Tribunal had one primary and two corroborating reasons for rejecting a claim and the Applicants only take issue with one of those corroborating reasons, the Applicants cannot show that the matter which was not considered was of sufficient importance to give rise to jurisdictional error.

3. The application must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 2 December 2016