BCX16 v Minister for Immigration
[2018] FCCA 364
•16 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCX16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 364 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 425 |
| Cases cited: BBK15 v the Minister for Immigration and Border Protection [2016] FCA 680. Minister for Immigration and Citizenship v Li [2013] HCA 18. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317. Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47. Selvadurai V v Minister for Immigration and Ethnic Affairs [1994] FCA 1105. SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884. SZSPT v the Minister for Immigration and Border Protection [2014] FCA 1245. SZSRY v Minister for Immigration and Border Protection & Anor [2013] FCCA 1284. |
| Applicant: | BCX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 991 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 28 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Petrie |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $8,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 991 of 2016
| BCX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Before the Court is an amended application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 19 April 2016 in which 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’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The grounds of application are as follows:-
“1. The Tribunal incorrectly construed s.36(2B)(c) of the Migration Act 1958 in concluding that complementary protection was precluded.
2. The Tribunal:
a. found that the Applicant’s immediate and extended family had not been harassed by ‘M’, when such a finding was not open on the evidence;
b. alternatively, constructively failed to consider the integer of the Applicant’s claim that his immediate and extended family had been harassed by ‘M’.
3. The Tribunal denied the Applicant procedural fairness and/or a hearing under s. 425 of the Act by finding that ‘M’ would still be interested in harming the Applicant on bases that were not obviously open on the known material.”
The Applicant relies upon the amended application filed on 17 November 2017 together with an affidavit affirmed by Dushan Nikolic on 17 November 2017 to which a copy of the transcript of the hearing is annexed. The Applicant also relies upon written submissions filed 17 November 2017.
The First Respondent seeks dismissal of the Applicant’s application together with costs. The First Respondent relies upon an affidavit of Isabelle Minnett affirmed 24 November 2017 (as to costs) together with submissions filed on 24 November 2017.
The Court has also before it the evidence as contained in the Court Book filed 27 November 2017.
Background
The Applicant is a citizen of Afghanistan. He was born on 31 December 1986. He is of Tajik ethnicity and is a Sunni Muslim. He married in 2008 and has two sons born in 2009 and 2010 respectively. Both he and his wife are from Kabul. The Applicant was born in, and thereafter continued to live in, Kabul. He arrived in Australia on 16 July 2012 as an unauthorised maritime arrival. Upon leaving Afghanistan, he left his wife and children behind.
On 21 August 2012, the Applicant attended an entry interview with an officer of the Department of Immigration and Border Protection (‘the Department’) (‘entry interview’). He applied for the visa on 13 November 2012. He attended an interview with a delegate of the First Respondent on 3 April 2013. On 3 January 2014, the delegate determined to refuse to grant the Applicant the visa.
The Applicant applied to the Tribunal for merits review of the delegate’s decision on 8 January 2014 and attached a copy of the delegate’s decision to the application form.
The Applicant attended a hearing before the Tribunal on 4 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The Applicant was represented in relation to the review by his registered migration agent.
The Applicant’s claims
The Applicant claimed to have left Afghanistan due to an incident which occurred in May 2012 in Kabul. The Applicant claimed that he was working as an assistant at his father’s shop when a person, who appeared to be of Tajik ethnicity, was murdered approximately ten metres outside the shop. The Applicant learned from a crowd of people who had gathered that the killer, referred to in these proceedings as “M ”, was a leader of a group of armed men and that M was politically connected.
The Applicant claimed M lived in the same suburb as the Applicant. The Applicant claimed that he was questioned by the police regarding the murder and informed them that although he did not witness the killing, he understood the perpetrator to be M. A few days later the Applicant learnt from a friend that M intended to kill him for providing information to the police.
The Applicant claimed he therefore fled Afghanistan, approximately 35 days after the incident. During this 35 day period, the Applicant did not go into his father’s shop, as he feared being killed. The Applicant said he fears returning to Afghanistan because he believes that M will kill him.
In submissions that were before the Tribunal, and which accompanied the visa application, the Applicant’s agent described M as “the influential Tajik Sunni warlord.” The Applicant’s claims under the Refugees Convention were articulated to be on the following bases:-
a)Imputed political opinion: the Applicant claimed he had come to the adverse attention of an influential Tajik Sunni Muslim who has links with the Afghan government; and
b)membership of the particular social group, ‘failed asylum seeker returnee from a Western country’.
On 23 April 2014, the Applicant provided the Tribunal with a written statement and written submissions. On 27 November 2015, the Applicant provided a further written submission and a statutory declaration to the Tribunal. The written submission addressed the delegate’s credibility findings, and cited various pieces of country information. In his statutory declaration the Applicant claimed that he had recently become aware, through conversations with his mother, that unknown people who he assumed to be connected with M had come looking for him in Kabul. This led the Applicant’s father-in-law, wife and children to go into hiding in an unknown location in Kabul. The Applicant claimed further that his own parents had also moved away from the area and his father was thought to have abandoned the shop all together.
The Applicant also referred to being unable to access effective State protection because of M’s political connections and being unable to reasonably relocate because his family was in Kabul. The Applicant also feared return to Kabul generally, because of the security situation there.
On 13 January 2016, the Applicant’s representative provided the Tribunal with a written submission and two journal articles regarding the impact of personal trauma and immigration detention on the memory of asylum seekers.
The Tribunal Decision
On 19 April 2016 the Tribunal affirmed the delegate’s decision. In reaching its decision, the Tribunal made various findings as set out below and as adopted from the submissions of the First Respondent, they being, as the Court finds, an accurate account of the Tribunal’s findings as to the Refugees Convention claims, and complementary protection claims, of the Applicant.
The Tribunal:-
a)noted that it would not be using the contents of the entry interview in any way adverse to the Applicant;
b)accepted that the Applicant was in or near his shop when the murder happened and that he was informed by others that the killer was M, a well-known gangster. The Tribunal also accepted that the Applicant was questioned by the police on one occasion;
c)did not accept that M or people associated with him want to kill the Applicant. Given the Applicant did not witness the murder, informed the police that he did not witness the murder, that M is a person who is unlikely to face justice and that M himself, went into hiding after the murder, the Tribunal found it implausible that M would seek to harm the Applicant;
d)observed that there is no evidence in support of the Applicant’s assertion that other witnesses may have been eliminated or intimidated into silence by M and, therefore, did not accept that claim;
e)found it implausible that M would want to harm the Applicant four years after the alleged murder, particularly where there was no evidence that M was ever investigated. The Tribunal found that by now M poses no threat to the Applicant and there will be no proper murder investigation, just as M had not been prosecuted for serious crimes committed prior to 2012. The Tribunal also found it implausible that M would want to intimidate or harm the Applicant for some other reason such as personal gain;
f)concluded that the Applicant and his family had never been of adverse interest to M, people associated with him or anybody else in relation to the murder which occurred in 2012. The Tribunal did not accept that the Applicant had ever heard through an intermediary that M wanted to kill him. As a consequence, the Tribunal rejected the claim that the Applicant’s family had to go into hiding;
g)relying upon independent country information, the Tribunal did not accept that the Applicant would face harm as a failed asylum seeker;
h)found that the Applicant did not face persecution for any other potential reason, including his imputed political opinion arising out of being a failed asylum seeker who had lived in Australia;
i)found that the Applicant did not have a well-founded fear of persecution for any claimed reasons;
j)cited country information which suggested that in Kabul the Taliban and other insurgents target government workers, security forces, foreign forces and NGOs, but do not target ordinary civilians such as the Applicant;
k)indicated to the Applicant that Tajiks and Sunnis are not at risk or targeted in Kabul. The Applicant did not comment on the suggestion put to him that any risk he faced in Kabul was one faced by the population generally;
l)found, in assessing the Applicant’s claims to be a refugee, that he could return to Kabul and live there without any fear of serious harm amounting to persecution;
m)found that while the country information indicated there are terrorist acts and an elevated level of generalised violence in Kabul, it was not satisfied that the Applicant faced a real chance of serious harm amounting to persecution in the context of that generalised violence. The Tribunal found that there is less than a real chance that the Applicant would be harmed in a terrorist act or in an act of generalised violence in Kabul;
n)did not accept that the Applicant would be specifically targeted for harm in his personal circumstances;
o)accepted that there had been violence against the civilian population across Afghanistan, including in Kabul, resulting in a number of civilian causalities;
p)found that the risk of terrorist attacks in Kabul is a risk faced by the population generally and not by the Applicant personally. The Tribunal did not accept that there is any particular attribute of the Applicant that would lead him to face a risk of differential treatment upon his return to Kabul;
q)in the absence of the Applicant possessing any particular attribute, did not accept that the level of generalised violence in Afghanistan was so elevated that the Applicant effectively faces a real risk of significant harm personally; and
r)for similar reasons, found that the Applicant would not face a real risk of significant harm for the purposes of the complementary protection regime.
The Tribunal considered that the complementary protection exclusion in s.36(2B)(c) of the Act applied. The complementary protection criterion is contained in s.36(2)(aa) of the Act which is as follows:-
“MIGRATION ACT 1958 - SECT 36
Protection visas--criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) …”
Section 36(2)(aa) is qualified by subsection (2B) which is as follows:-
“(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”
Consideration
Ground One
The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’) set out the relevant law in respect of the complementary protection criterion. The Tribunal said the following:-
“16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm; s.36(2)(aa) (‘the complementary protection criterion’).
17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s. 5(1) of the Act.
18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.”
The Tribunal began its analysis of the complementary protection criterion at paragraph 104 of the Decision Record by setting out s.36(2B)(c) of the Act.
The Tribunal’s findings, relevantly, as contained in paragraphs 106 to 112 of the Decision Record are as follows:-
“106. The Tribunal has considered the applicant's circumstances with respect to this point. For the reasons provided under the heading “Well-founded fear of persecution, the security situation in Afghanistan”, the Tribunal has not accepted that the applicant will be specifically targeted for harm in his personal circumstances by the Taliban or other insurgent groups in Kandahar.
107. The Tribunal notes that there is a level of violence in Kabul as discussed with the applicant at the hearing. The Tribunal accepts that in late September and early October 2015, the Taliban also took over the city of Kunduz and controlled it for about 15 days. According to reports they destroyed government offices and facilities, seized military hardware, hunted down opponents and freed prisoners from the city prisons. Even though the operation was unexpected and impressive, the total number of people killed was 57 and nearly half of the fatalities were caused by a US airstrike on a hospital. Otherwise, the number of civilians killed was low: it was reported that of the 57 dead, 31 were police officers.
108. The Tribunal has also considered recent country information about the rise of ISIS or Da'esh in Afghanistan, including reports that the veteran Afghan warlord Gulbuddin Hekmatyar, the leader of Hezb-e-lslami, has aligned himself with ISIS.
109. The Tribunal accepts that there has been violence against the civilian population across Afghanistan, including Kabul where most international and central government office workers are based, and that there have been a number of civilian casualties (deaths and injuries) of people caught up in attacks.
110. While the Tribunal accepts that terrorist attacks do occur in Kabul from time to time, the Tribunal considers that this is a risk that is faced by the population generally, and not by the applicant personally in this generalised violence context in that city. The Tribunal does not accept that there is any particular attribute of the applicant that would lead him to face a risk of differential treatment on his return.
111. In the absence of any such particular attribute, having considered the country information detailed above, and the information from a number of sources, including the risk of deterioration in the security situation, the Tribunal does not accept that the level of generalised violence in Afghanistan, is so elevated that the applicant faces a real risk of significant harm as defined in the Act.
112. Having regard to the findings of fact above in relation to the applicant’s Convention claims, and having assessed the Applicant’s claims individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds to believe that as a necessary and foreseeable consequence of the Applicant being removed to Afghanistan, there is a real risk that the applicant will suffer significant harm from M, the Taliban, ISIS or any other person in Afghanistan for any reason.”
The Applicant contended in respect of the findings of the Tribunal set out above, that the risk in Afghanistan generally, was not, on the Tribunal’s reasoning, the same as the risk in Kabul where there was “a level of violence”. The Applicant contended that by inference, the risk of violence was higher in Kabul. The Applicant argued therefore that to the extent that paragraphs 111 and 112 of the Tribunal’s Decision Record might be taken to invoke the exclusion in s.36(2B)(c) of the Act, the Tribunal wrongly focused on the risk in the country generally, when the Applicant was concerned with a risk that was different in a particular city. The Applicant submitted that the Tribunal’s error is jurisdictional because the Tribunal did not go on to make any finding about whether the risk of an ordinary civilian being caught up in attacks in Kabul was a “real risk”.
The difficulty for the Applicant in raising this argument, as submitted by the First Respondent, is that the Applicant’s argument that where the risk to the national populace varies, then s.36(2B)(c) will not be engaged, is an argument that has been rejected in the Federal Court of Australia. The authorities establish that s.36(2B)(c) of the Act directs attention to the particular question of whether the Applicant personally faces a real risk to which others in the general population are not exposed.
The relevant authorities are SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (‘SZSPT’) and BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 (‘BBK15’), the latter a decision of Buchanan J wherein his Honour followed the decision in SZSPT.
In SZSPT Rares J observed, relevantly:-
“11. In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
12. Here, the risk faced by the population of Sri Lanka generally was that if its citizens broke the law, they became liable to such penalties as the law applied to the relevant contravention. Every citizen who broke such a law necessarily faced a risk personally that the consequences of such an infraction would be applied to him or her by law. But that was not any different to a risk faced by the population of the country generally …
13. It would be unrealistic to construe the exception in s 36(2B)(c) as incapable of application to every person who was a lawbreaker in the country to which he or she was to be returned, where the consequence of the person having previously broken the law was that he or she might be exposed to the risk of being imprisoned in a prison system that did not meet international standards, but to which every other citizen of that country was equally liable to be subjected to if he or she broke not only that law, but any other law of that country. In particular, the exception provided by s 36(2B)(c) was directed to a real risk, for example, that a person would be subjected to torture were he or she returned to a country, to which not everyone in the population was exposed. However, if the population were generally exposed to the risk of torture, as opposed to the person as an individual or by reason of some characteristic that distinguished him or her from the characteristics of the general populace, then the exception was intended to operate, odd as that may seem…”
In BBK15, Buchanan J observed:-
“30. In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a “real risk of harm” for the purpose of s 36(2)(aa)
…
32. I also reject the appellant’s contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to “the population of the country generally” is a reference to the commonly understood concept of the general population – i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.”
The appellant is SZSPT sought special leave to appeal to the High Court, but in refusing leave, Kiefel J (as Her Honour then was) held that there was no reason to doubt the decision of Rares J.[1]
[1] SZSPT v Ministerand Border Protection & Anor [2015] HCASL 114.
The decision in SZSPT has been followed in this Court in a number of decisions. Given the binding decisions of the Federal Court of Australia and desirable comity between judgments of this Court in similar cases, the Court rejects the Applicant’s contention regarding the construction of s.36(2B)(c).
The Court notes that the Tribunal expressly followed the decision in SZSFF v Minister for Immigration and Border Protection [2013] FCCA 1884, but no different result would have ensued had the Federal Court of Australia decision in SZSPT been followed by the Tribunal.
Before leaving this ground I note that the Applicant relied upon the authority of SZSRY v Minister for Immigration and Border Protection & Anor [2013] FCCA 1284 (‘SZSRY’) in pursuing this argument. The Applicant pointed to the Tribunal finding that there is a level of violence in Kabul. The Applicant argued that the Tribunal did not make any finding of fact as to the content of that level of violence, that is, whether it was high or low or a real risk or not a real risk. The Applicant argued he was entitled to expect that his claims in relation to a fear of generalised violence should have been considered as a member of a class, the class being people in Kabul as distinct from the rest of the population of Afghanistan. The Court finds however that the Tribunal’s findings, read as a whole, should be construed as a finding that the Applicant would not suffer significant harm in Kabul for the purposes of the complementary protection criterion. The Tribunal was entitled to consider the complementary protection criterion by reference to the findings it had made in relation to the Applicant’s Convention claims. The Tribunal’s reasons disclose that the Tribunal did not accept the Applicant to come within the terms of s.36(2)(aa) of the Act regardless of the potential application of s.36(2B)(c) of the Act. Additionally, the Court finds the Tribunal correctly applied s. 36(2B)(c) of the Act having earlier found that the Applicant did not come within the terms of s.36(2)(aa) of the Act. That finding was reasonably open to the Tribunal on the evidence before it and was a finding that did not require the Tribunal to further consider s.36(2B)(c) of the Act. The Tribunal did not find that the real risk faced by persons in Kabul, including the Applicant, was greater than that face by the population of Afghanistan generally, as was found by the Tribunal in the Tribunal decision considered in SZSRY.
Ground one of the application must therefore be dismissed.
Ground Two
The Applicant argued that the Tribunal’s rejection of the Applicant’s claim that immediate and extended family had been harassed was not supported by any logical reasoning and that the Tribunal’s conclusions were not supported by the evidence before it. An alternative characterisation as put by the Applicant was that the Tribunal constructively failed to consider this integer of the Applicant’s claims. The Applicant submits that had the Tribunal accepted that the Applicant’s family had been harassed, it would have affected the Tribunal’s conclusion about whether any fear of harm from M objectively existed and thus whether the Applicant’s fear of M was well founded.
The Court finds that this ground cannot be established.
The Tribunal provided reasons, open to it on the evidence before it, for its non-acceptance of the Applicant’s evidence that his family had been harassed. The Tribunal said in paragraphs 73 to 77 of the Decision Record the following:-
“73. Because the Tribunal has rejected the applicant’s claims that he had to flee Afghanistan in order to escape harm by [M], the Tribunal does not accept the claims that the applicant’s parents had moved to another part of Kabul, called Qasaba; and that his father-in-law decided to take the applicant’s wife away, because he (the applicant’s father-in-law) considered that it was too dangerous for her to remain the applicant’s relatives.
74. There is an additional reason why the Tribunal does not accept that the applicant's parents have been threatened or asked questions by M’s men, or that they decided to move (relocate) to another suburb of Kabul. The applicant's claim, as the Tribunal understood it, was that he had to leave Afghanistan immediately when he realised that M was after him. He could not hide anywhere in Kabul. M could find him elsewhere in the city. The applicant said in his statutory declaration:
It is not possible to relocate as I was born and I lived all my life in Kabul. I cannot relocate in Kabul as I fear M and his men would kill me.
75. Thus, it would have been futile for the applicant's parents to relocate with (sic) Kabul, because M and his men could have found them anywhere they go in the city. For this reason also, the Tribunal does not accept that his parents have moved.
76. The third reason why the Tribunal does not accept this particular claim is the following. Towards the end of the hearing, the Tribunal asked the applicant if his father was working at the moment. Initially the applicant said yes. The Tribunal asked where and the applicant said “with my brother”. The applicant understood the questions perfectly well and answered them truthfully. However, he remembered that this was contrary to his earlier claims and decided to change his evidence. He said he did not know where his father was working now, what he was doing and how the family was surviving financially. The Tribunal asked the applicant whether he was making up his evidence that his father was no longer working at the shop. The applicant denied this was the case.
77. In relation to the claims that the applicant's wife and children moved or rather were moved by the applicant's father-in-law, the Tribunal considers this to be a far-fetched claim. The Tribunal accepts the representative's compelling submissions as to why the applicant and his wife and children may not have been in regular contact. Be that as it may, the Tribunal is not satisfied that the applicant's father-in-law would have been so concerned for the safety of his daughter that he would have taken her and the children away, even though M and his men only ever threatened to harm the applicant. This claim is even more implausible where the wife and children had remained in the same house (with the applicant's parents) and were not harmed until early 2014. The applicant spoke with his wife in early 2014 and only after that her father allegedly decided to act.”
The Applicant alleges that, contrary to the Tribunal’s reasons at 76, his evidence did not change in answer to the question asked of him as to whether his father was working. The Tribunal asked “is your father working at the moment” and the Applicant answered “yes”. The Tribunal then asked “where?” and the Applicant responded “I don’t know about his job, ever since he left the shop”. The exchange between the Tribunal and the Applicant then continued as follows:-
“Member: Why did you say yes he was working, and now you're saying he's not working?
Interpreter: [Dari language].
Member: Or you don't know?
Interpreter: [Dari language].
Applicant: [Dari language].
Interpreter: Ever since he left the shop, I don't know.
Applicant: [Dari language].
Interpreter: Prior to that he was in the shop working.
Member: How is your family surviving?
Interpreter: [Dari language].
Applicant: [Dari language].
Interpreter: Well, I don't know what they are doing for job, so I didn't ask anything about their jobs.
Member: You are not making this up? Because you remember that you have been telling me the family moved?
Interpreter: Sorry?
Member: I'm wondering whether your father still runs the shop, but you had to change what you said, because you remembered that you told me that the family had to move from one part of Kabul to another.
Interpreter: [Dari language].
Applicant: [Dari language].
Interpreter: I didn't [unintelligible 00:51 :04].
Member: When I asked you whether your father works, you said yes.
Interpreter: [Dari language].
Member: But then you changed, and I'm wondering whether you changed and you said you don't know what he's doing, because you remembered that you told me that the family had moved. I'm wondering whether your family moved or not? And it's possible your family didn't move, and you told me that your father was working because your family remains where it has always lived, and your father continues to work the shop.
Interpreter: [Dari language].
Applicant: [Dari language].
Interpreter: Well, I talked to my representative as well, sorry [Dari language].
Applicant: [Dari language].
Interpreter: On Friday, saying that yeah, I talked to my Mum five months ago, and then I talked to my Mum five months ago and I know that they moved to the suburb, and I know that they left the shop, but they didn't tell me anything what they are doing, I don't know what they are doing for a job.”
The Applicant claimed he only responded that he did not know what job his father was working. As explained above this is not correct. Among other things, in response to the question “why did you say yes he was working, and now you’re saying he’s not working?”, the Applicant said “ever since he left the shop, I don’t know”. The Tribunal’s observations about the changing state of this evidence, was open to the Tribunal.
The Applicant submits that the Tribunal found that the Applicant’s wife and family were first harmed in 2014. The First Respondent submits that this is, however, a misreading of the Tribunal’s reasons which, admittedly, suffer from a grammatical infraction by failing to include a comma immediately following the words “(with the applicant’s parents)”. The First Respondent submits that the Tribunal’s reasons, when read beneficially,[2] ought to read, “...this claim is even more implausible where the wife and children had remained in the same house (with the applicant’s parents), (comma added) and were not harmed, until early 2014.” That is, they had not been harmed despite living in the same house until 2014. This construction is clearly supported by the balance of the Tribunal reasons, when read as a whole and fairly, and is accepted by the Court.
[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
The Court finds nothing unreasonable in the sense contemplated by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’) about the Tribunal’s chain of reasoning. The Tribunal’s findings are not evidence of extreme illogicality or irrationality in the sense contemplated in Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, a decision often referred to in the Court:-
“...the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.”
Ground Three
The Applicant argued his subjective fear of harm still existed, even though it was four years since the murder. The Tribunal found it was not objectively well-founded because:-
a)there was no investigation into the accused; and
b)there was no evidence from the rest of the family that they had been approached by the police for testimony.
The Applicant submitted that the Tribunal’s rejection of this key aspect of the Applicant’s claim, namely, that the fear of harm from M even four years later was objectively well founded, for the particular reasons the Tribunal articulated, was a denial of procedural fairness because it was not a finding “obviously… open on the known material”.[3] The Applicant submits that the Tribunal “unwittingly misled the Applicant as to what were ‘the issues arising in relation to the review’ [4]”.
[3] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 12, 29-38.
[4] Migration Act 1958 (Cth) s.425(1).
The Tribunal tested the evidence of the Applicant relating to the investigation of M to test the veracity of the Applicant’s claims regarding the police inquiry into M’s conduct. This testing of the Applicant’s evidence was a course open to the Tribunal. The onus was on the Applicant to make out the factual basis of his claims for the visa.[5] It was not for the Tribunal to make out the Applicant’s case.[6] As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [29] to [31] and [48], a decision-maker is not required to expose his or her mental processes or provisional views before making a decision. That is the complaint here. No failure to afford the Applicant procedural fairness was made by the Tribunal. The Applicant was on notice throughout of the dispositive issues in the matter before the Tribunal. The investigation of M, and as part thereof the desire of the police to interview the Applicant, the Court finds, was not in any event a critical issue at the hearing.
[5] Selvadurai V v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 per Heerey J.
[6] Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47.
The Court finds this ground cannot be established.
Conclusion
The Court concludes that the application should be dismissed with costs. The costs that are sought by the First Respondent are in the following amounts:-
a)$7328 being Item 3 of Division 1, Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth); and
b)$1000 being an amount for the First Respondent’s costs thrown away by reason of the Applicant’s conduct in the running of the proceedings which is set out in the affidavit of Ms Minnett sworn 24 November 2017. That conduct led to the Court making orders on 10 November 2017 that the First Respondent’s costs thrown away were to be paid by the Applicant. The First Respondent calculates that the Minister’s costs thrown away by reason of the Applicant’s late filing of submissions amounts to $1000. In the exercise of its discretion the Court determines that that sum is an appropriate sum and that the costs order as sought by the First Respondent should be made.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 February 2018
Corrections
Paragraph 23, name anonymised.
Paragraph 37, name anonymised.
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