BDO15 v Minister for Immigration
[2018] FCCA 72
•18 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDO15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 72 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – citizen of Afghanistan – whether failure to properly consider an integer of the claim – whether failure to properly consider a claim which arose on the facts – whether jurisdictional error. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.36, 91R, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Minister for Immigration & Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NABE v Minister for Immigration & Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 WZAVQ v Minister for Immigration & Border Protection [2016] FCA 188 |
| Applicant: | BDO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 274 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 April 2016 |
| Date of Last Submission: | 27 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 18 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr FA Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 274 of 2015
| BDO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision, at Court Book (“CB”) 263-294, made on 30 May 2015, affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) made on 27 March 2014 to refuse to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
Factual and procedural background
The factual and procedural background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Afghanistan who arrived in Australia by boat as an irregular maritime arrival on 22 July 2012: CB 17 and 147;
b)on 14 December 2012 the applicant lodged an application and supporting statutory declaration for a Protection Visa making the following claims:
i)his paternal uncle established a business delivering petrol from Pakistan to American and Coalition forces near Kabul and the applicant's brother helped his uncle in the business: CB 58;
ii)the Taliban specifically warned them to stop supplying fuel, and in 2009 his uncle and brother went missing on the border of Afghanistan and Pakistan whilst on a fuel delivery trip and he believes they were killed by the Taliban because they were supplying fuel to foreign troops at Bagram: CB 58-59;
iii)he reported the incident to the Pakistani Police but they did not write a report down because he was not legally in Pakistan: CB 59;
iv)on 5 October 2011 the applicant and his business partner received a letter from the Taliban accusing them of ‘Islamically-inappropriate’ activity including selling alcohol, allowing gambling and selling inappropriate videos from their business and telling them to report to Haji Mangal Bagh, head of the Lashkare Islam branch of the Taliban (“LIT”): CB 59;
v)on 15 October 2011 at about 8pm a group of people arrived and burned down his shop and beat the applicant, and he suffered fractures to his head and arm: CB 59;
vi)the applicant and his business partner were taken and kept prisoners by the LIT for 15 days in a room with three others, and every Friday the LIT would hold a meeting on how to punish its prisoners: CB 59;
vii)they eventually escaped, but his business partner was shot and killed by the Taliban while they were running away: CB 59;
viii)he fears returning to Afghanistan because he will be in danger of being killed by his maternal uncles to stop him claiming the land which belonged to his deceased parents: CB 59;
ix)he will be killed by the Taliban because of his perceived religious and political views as an enemy of Islam for supporting foreign troops by delivering fuel to them, and he claimed he would be killed for the same reasons as his uncle and brother: CB 59-60;
x)the Taliban in Afghanistan and Pakistan are all part of the same organisation and he will be tracked down and killed if he were to return to anywhere in Pakistan or Afghanistan: CB 60; and
xi)the Afghan and Pakistani governments are unable and unwilling to protect the applicant and his family: CB 60;
c)the Delegate interviewed the applicant in relation to his application on 8 October 2013, and on 15 October 2013 written submissions on behalf of the applicant were provided by his representative: CB 105-126 and 147;
d)on 27 March 2014 the Delegate refused to grant the applicant a Protection Visa: CB 146 and 166;
e)on 31 March 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision and written submissions were provided to the Tribunal by the applicant's representative on 13 April 2015: CB 169-170 and 228-249;
f)on 20 April 2015 the applicant appeared before the Tribunal with the assistance of his migration agent and a Pashto/English interpreter: CB 250-252 and 267;
g)on 30 May 2015 the Tribunal Decision affirmed the Delegate's Decision not to grant the applicant a Protection Visa: CB 263; and
h)on 24 June 2015 the applicant lodged an application in this Court seeking review of the Tribunal Decision.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)accepted the applicant is an Afghani citizen, and that despite living in Pakistan since 1988 until his arrival in Australia, was satisfied by country information that he could not be a naturalised Pakistani citizen by virtue of his prolonged and uninterrupted residence in Pakistan, and that he did not have a right to enter or reside in another country, and was thereby not prevented from applying for protection in Australia by s.36(3) of the Migration Act: CB 272-273 at [61]-[64];
b)found that the applicant was credible in respect of certain aspects of his claims, but found that critical parts of his claims and evidence were fabricated or exaggerated: CB 273 at [68]. Specifically the Tribunal:
i)accepted his paternal uncle established a fuel delivery business between Pakistan and the Bagram Base near Kabul in Afghanistan, including specifically supplying fuel to American and Coalition forces and, on the basis of country information, accepted his paternal uncle and brother were likely killed by the Taliban and that the applicant reported their disappearance to the Pakistani Police, but that they offered little assistance: CB 274 at [71];
ii)found the claim regarding the letters received by the Taliban in connection with his ‘Islamically-inappropriate’ business activities and that the applicant’s account of being detained appeared rehearsed, and when placed on notice of these concerns the applicant stated the letters he provided were genuine and the villagers could confirm the risk he faced, and the Tribunal did not place any significant evidentiary weight on the letters, and observed that the account of the escape appeared rehearsed, and having regard for certain country information found that the applicant and his partner would have been treated more summarily than merely being held for 15 days without adequate security permitting their escape, and did not accept that the applicant was regarded by the Taliban in Pakistan as un-Islamic, or an infidel, or a person who should be targeted on religious grounds: CB 275-276 at [75];
iii)accepted his parents had married contrary to family permission and, because of this and a property dispute, had been killed: CB 276 at [76]; and
iv)did not accept that the applicant faced serious harm if returned to Afghanistan from his uncles or anyone in his extended family, the Tribunal noting that the applicant’s wife and children have returned to Afghanistan on three occasions and have returned to their home village where the applicant’s mother-in-law resides, and which is the applicant’s own village, which indicates that they do not face a real chance of serious harm for any reason or for the reasons in relation to the ongoing property dispute from 1988: CB 276 at [77]; and
v)in any event, the applicant talked about his return to Afghanistan in around 2005 and his instructions to his mother-in-law to sell his parents’ property, and that during a brief visit with his mother-in-law the land was sold and his share of the proceeds from the sale was sent to him, and consequently the Tribunal was not satisfied that the applicant maintains an ongoing property interest in the land formerly owned by his parents, and therefore was not satisfied that there continued to be an ongoing property dispute between his deceased parents or sibling, and that the applicant was at any risk of serious harm for this reason: CB 276-277 at [77];
c)did not consider it necessary to consider the applicant’s claims to fear persecution in Pakistan given the finding he had no lawful right to reside there, however to the extent they were relevant to his claims for protection in Afghanistan would consider them: CB 274 at [69];
d)regarding the applicants claims in respect of the fuel delivery business:
i)found that the applicant had an insignificant role in the fuel distribution venture and would not be targeted for harm in Afghanistan because he had no relevant international connections or profile potentially making him a target, and cited various country information sources in support of that conclusion: CB 274 at [72];
ii)considered that the chance of the Afghan Taliban being informed of the applicant's insignificant role was remote when country information suggested the Pakistani and Afghan Taliban groups are heavily divided along regional and tribal lines: CB 275 at [73];
iii)was satisfied that had the Taliban been interested in the applicant by reason of his association with the fuel delivery business it would have threatened or harmed him in the period between his uncle and brother’s disappearance and his leaving to go to Australia in 2011: CB 275 at [73]; and
iv)determined that the applicant did not face a real chance of serious harm from the Taliban for this reason should he return to Afghanistan: CB 275 at [74];
e)despite this claim not being raised by the applicant, found that the applicant, his wife and his children would not face serious harm if returned to Afghanistan due to their time spent in Pakistan and neither the applicant nor his family had any greater vulnerability than the rest of the Afghan population to the generalised violence in Afghanistan: CB 277 at [78]-[79];
f)determined that the applicant would not face serious harm due to the generalised violence in his home province of Nangarhar, or in Afghanistan generally, as this risk was not systematic or discriminatory conduct for any Convention reason as required by s.91R(1)(c) of the Migration Act, nor that the applicant would face a real chance of being abducted or killed for any Convention reason while travelling from Kabul to Nangarhar: CB 277 at [80]-[83]; and
g)considered whether there were substantial grounds for believing that the applicant would face a real risk of significant harm if returned to Afghanistan and found, on the basis of its findings regarding his protection claims, that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act: CB 279 at [85]-[90].
Judicial Review Application
On 23 March 2016 the Court made orders by consent which allowed the applicant to file a second amended application (“Further Amended Judicial Review Application”), and the applicant did so on 24 March 2016. An accompanying affidavit was also filed on 3 November 2015 sworn by Patricia Ng Phaik Kim (“Ms Kim’s Affidavit”) which annexed a transcript of the Tribunal hearing (“Tribunal Hearing Transcript”) which is separately paginated from pages 1 to 28.
The Further Amended Judicial Review Application contained three grounds. The applicant conceded ground 1 could not succeed and did not press it.
Grounds 2 and 3 are set out and considered below.
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon judicial review by this Court if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 2
Ground 2 is as follows:
The Tribunal failed to properly consider an integer of the applicant’s claim.
Particulars:
The Tribunal failed to consider a claim clearly articled and advanced by the applicant that he feared harm on the basis that his uncles may report him to the Taliban as being a person who gave assistance to foreign forces.
Applicant’s submissions
The applicant made the following submissions in support of ground 2:
a)ground 2 alleges a failure to properly consider an integer of the applicant’s claim, namely whether the applicant was at risk of being reported to the Taliban as a person who gave assistance to Coalition forces from Pakistan;
b)if the Tribunal makes a decision without considering all of the claims, it fails to complete the exercise of the jurisdiction conferred upon it and falls into jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”); NABE v Minister for Immigration & Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”);
c)where the Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural Affairs[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24] per Gummow and Callinan JJ (“Dranichnikov”); NABE (No 2) at [55] per Black CJ, French and Selway JJ;
d)the Tribunal was not satisfied that the applicant’s “very limited association with his uncle and brother in the distribution of fuel venture” meant that he faces a real chance of serious harm from the Taliban should he return to his village of province, or to Afghanistan generally;
e)the Tribunal then went on to consider a claim advanced by the applicant in relation to a family property dispute, and accepted in this regard that the applicant’s parents married contrary to family permission and as a result of the unauthorised marriage and also because of a property dispute, the applicant’s parents were killed;
f)ultimately, the Tribunal dismissed the claim in relation to being at a risk of serious harm because it was:
not satisfied that the applicant maintains an ongoing property interest in the land formerly owned by his parents, and as a result, is not satisfied there continues to be an ongoing property dispute between his deceased parents siblings or that the applicant is at any risk of serious harm for this reason.
CB 276-277 at [77];
g)during the Tribunal hearing, the following exchange occurred:
TM: So why would they want to hurt you now. You’re almost 29 years of age now, it was 26 years or so ago, why would they still want to hurt you if they killed your parents.
AS: Basically they’re still harming me and my family. My uncle and my brother were reported to the Taliban by them and my brother had disappeared since 2009 and who else would report to the Taliban about them (indistinct).
Tribunal Hearing Transcript at page 8;
h)it appears quite clear that the applicant was not necessarily concerned that his uncles who opposed him in relation to the property dispute would directly harm him, but rather upon his return to Afghanistan they would report him to the Taliban, as they did to the applicant’s brother and uncle – whom the Tribunal accepted had been killed by the Taliban for the reason claimed;
i)nowhere in the Tribunal Decision does it deal with or seem to engage with a claim that the applicant’s uncles would report him to the Taliban upon his return, yet stated:
the Tribunal does not accept that his uncles, or anyone else in his extended family would have an intention to seriously harm the applicant should he return to Afghanistan.
which is a finding that fails to engage with the claim that he feared that his uncles would ‘inform’ the Taliban of his return and his past support for Coalition forces - as opposed to a claim that he would be significantly harmed by his uncles, and it would appear that the Tribunal misapprehended part of the claim made by the applicant in this regard; and
j)accepted that Minister for Immigration & Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 (“Tran”) and WZAVQ v Minister for Immigration & Border Protection [2016] FCA 188 (“WZAVQ”) were applicable to the present matter, but says that:
i)reading the Tribunal Decision fairly does not mean construing the reasons in a manner which would be favourable to the Minister, that is, the entirety of the reasons have to be construed fairly to both parties;
ii)the context in which the Tribunal refers to the applicants claim his uncles will report him is at CB 270 at [46] of the Tribunal Decision under the heading ‘Tribunal Hearing’ and consideration of the claims and evidence is not dealt with until CB 272 at [60] of the Tribunal Decision;
iii)nowhere in the Tribunal Decision does the Tribunal deal with the claim the applicant feared his uncles would report him to the Taliban upon his return, and such a distinct claim deserved to be dealt with independently; and
iv)the Tribunal’s assessment of the risk the applicant faces from the Taliban at CB 275 at [73] was against the Pakistani sect of the group, not the Afghan.
Minister’s submissions
The Minister’s submissions in opposition to Ground 2 were:
a)contrary to the contention that nowhere in the Tribunal's Decision “does it deal with or seem to engage with a claim that the applicant's uncles would report him to the Taliban upon his return”, the Tribunal recorded that:
46. The Tribunal asked the applicant for further detail on his claim that his mother's brothers will harm him because they fear he will try to reclaim land. He said they will report him to the Taliban who will harm him.
CB 270 at [46];
b)the Tribunal's conclusion addressing the risk of the applicant's uncles wanting to harm the applicant due to the land dispute, and due to the fact that his parents were married contrary to family permission, clearly encompasses both of the applicant's claims to fear a threat of harm by his uncles directly (that they would kill him), and having regard to the Tribunal Decision at CB 270 at [46], harm by reason of his uncles’ reporting him to the Taliban, who would harm him;
c)it was observed in Tran at [24] per Jagot J that the Tribunal's reasons are to be read as a whole, are to be read fairly, and are not to be read as if each paragraph is self-contained and necessary sequential;
d)it may be unnecessary for the Tribunal 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: Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630 at [47] per French, Sackville and Hely JJ (“WAEE”);
e)the Tribunal was aware of the applicant's claims that he was in danger of being killed by his mother’s brothers: CB 265 at [16], or that they would harm him by reporting him to the Taliban who would harm him: CB 270 at [46], but rejected the factual premise that his uncles or anyone else in his extended family would have an intention to seriously harm the applicant should he return to Afghanistan: CB 276-277 at [77], and when the Tribunal Decision is read fairly and as a whole, and not as if each paragraph is self-contained and sequential, it is apparent that this conclusion is a finding of greater generality that encompasses the applicant's claimed threats of harm from the applicant's maternal uncles either by them killing the applicant, or by them reporting him to the Taliban; and
f)the Tribunal Decision, when read in this light, gives rise to no jurisdictional error by the Tribunal on the basis asserted by Ground 2.
Consideration – ground 2
In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a) the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence: Dranichnikov at [23] per Gummow and Callinan JJ;
b) the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; and
c) a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25] and [32] per Gummow and Callinan JJ.
In Htun at [42] per Allsop J it was held that the Tribunal will commit jurisdictional error where it excludes from its consideration some factor or component integer which is mandatorily relevant under the Migration Act. The Tribunal is not, however, required to consider a claim that is not expressly made or does not arise clearly from the evidence and material before it: NABE No 2 at [61] per Black, French and Selway JJ.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in WAEE, namely that:
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.
WAEE at [47] per French, Sackville and Hely JJ.
In SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37] per Robertson J, Griffiths J, Perry J the Full Court of the Federal Court said:
We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant's submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.
In WZAVQ at [55] per Barker J the Federal Court said that:
55. There is no doubt that a Tribunal’s reasons should be read as a whole and fairly, as indeed should most, if not all, reasons given by decision-makers, tribunals and courts. In that regard, what Jagot J said in Tran at [24] is not to be doubted. First, reasons are to be read as a whole. Second, reasons are to be read fairly. Third, reasons are not to be read as if each paragraph is self-contained and necessarily sequential. But, having so stated, it will always be a question of construction as to what a decision-maker actually did decide in a particular case, and for what reason.
The component integer the Tribunal allegedly failed to consider was the claim the applicant feared harm on the basis his uncles may report him to the Taliban for providing assistance to Coalition forces. Ms Kim’s Affidavit supports the making of a statement to this effect by the applicant at the Tribunal Hearing: Tribunal Hearing Transcript at pages 8 and 19. The Minister argued the matter on the basis that, and did not dispute that, the applicant clearly expressed a claim that the applicant feared his uncles would report him to the Taliban as he believed they had done in respect of his brother and uncle.
In considering the family property dispute it is firstly relevant to observe that the Tribunal expressly said that it had “regard to all of the evidence” in considering this issue: CB 276 at [77]. Given that the Tribunal expressly referred to the applicant’s claim that his uncles would report him to the Taliban “who will harm him”: CB 270 at [46], and did so in the context of the Tribunal asking for further detail of the claim that his uncles “will harm him because they fear he will try to re-claim land”: CB 270 at [46], it is not lightly to be inferred that the Tribunal did not consider this claim, indeed the inference that the Tribunal failed to consider an issue ought not be drawn readily in circumstances where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at some point been identified: WAEE at [47] per French, Sackville and Hely JJ.
In this case the Court is not prepared to infer that the claim that the uncles would report the applicant to the Taliban in order to cause him harm, in the context of the family property dispute, was not considered in circumstances where:
a)the Tribunal was clearly aware of and referred to the family property dispute claim;
b)the Tribunal Decision is otherwise comprehensive, both in relation to this issue and other issues; and
c)the applicant’s credibility was otherwise in issue.
There are further reasons why the Tribunal’s consideration of this issue does not give rise to jurisdictional error, namely:
a)that the Tribunal had stated it was not satisfied the applicant would suffer harm by his uncles or extended family, or the Taliban of both Pakistan and Afghanistan, if he were to return to Afghanistan, the generality of this finding in the Court’s view also encompasses the fear of the applicant that his uncles will report him to the Taliban; and
b)it was, in any event, unnecessary for the Tribunal to make a finding on this claim because there are a factual premises upon which the contention rests which have been rejected: WAEE at [47] per French, Sackville and Hely JJ, including the following:
i)the Tribunal noted the applicant was unreliable in reference to the key aspects of his claims regarding the nature of his dispute with his extended family: CB 276 at [77];
ii)the Tribunal had made findings the applicant was not of adverse interest to the Taliban: CB 275-276 at [74]-[75]; and
iii)the Tribunal also found the property dispute the applicant claimed caused him to fear harm from his uncles was no longer continuing, referring to evidence from the applicant that the land had been sold and that the applicant’s share of the proceeds from the sale of the land had been sent to him, and therefore the applicant did not have an ongoing property interest in the land formerly owned by his parents and that there was no ongoing property dispute between him and his uncles: CB 276-277 at [77].
In the Court’s view the Tribunal has adequately considered and addressed the applicants claim regarding his uncles reporting him to the Taliban. Alternatively, and in any event, it was unnecessary for the Tribunal to make a finding on the claim because it was subsumed into a finding of greater generality: WAEE at [47] per French, Sackville and Hely JJ. In this case it was fatal to the applicant’s claim he feared his uncles would report him to the Taliban in Afghanistan when the Tribunal found:
a)the family property dispute was no longer extant (a finding with which the applicant did not cavil: Transcript, page 3); and
b)the applicant was of no adverse interest to the Taliban in Afghanistan.
The Court finds no jurisdictional error in ground 2.
Ground 3
Ground 3 is as follows:
The Tribunal failed to properly consider a claim which arose squarely on the facts, namely whether the applicant was at risk on account of being a person imputed to either support coalition forces or as a person who gave support to coalition forces.
Particulars
The Tribunal accepted that:
(a) The applicant’s paternal uncle established a business delivering petrol from Pakistan, into Afghanistan to the Bagram Base near Kabul;
(b) The applicant’s paternal uncle and his brother were killed as a result of their direct involvement in supplying fuel to the coalition forces in Bagram;
(c) The applicant drove the fuel truck on 5 or 6 occasions, albeit never into Afghanistan;
(d) The applicant had a role, albeit an insignificant role, in the petrol distribution venture;
But not accepting that the applicant would be at harm for his involvement, should have considered whether the applicant would have been imputed with an adverse profile by reason of being related to two persons who the Tribunal had accepted had been killed for their involvement in the fuel distribution business.
Applicant’s submissions
The applicant made the following submissions in support of ground 3:
a)it matters not whether the applicant’s involvement in the fuel distribution venture was significant or insignificant, the relevant factor is that the applicant was directly involved in a venture supporting Coalition troops;
b)having made the findings that it did regarding the fuel distribution venture and the applicant’s involvement it was incumbent on the Tribunal to consider whether (separately or cumulatively) by virtue of:
i)the applicant’s relationship to his brother and uncle; and/or
ii)the applicant’s insignificant role in the business, albeit within Pakistan,
the applicant was at risk of being imputed as a person who supports the Coalition troops or was significantly involved in the fuel distribution venture, and as such would be at risk of harm;
c)the claim of imputed support was also directly raised by the applicant on page 1 of the applicant’s pre-hearing written submissions:
The Claimant will also be persecuted in Afghanistan by the Taliban because of his connection to his uncle and his brother, both of whom are missing, believed dead, after being kidnapped by the Taliban in Afghanistan, due to their involvement in the transport and supply of fuel to Coalition Forces in Afghanistan. (emphasis in italicized bold added).
d)a fair reading of the Tribunal Decision shows that the Tribunal only determined:
i)whether the Taliban in Afghanistan had current knowledge of the applicant’s involvement in the fuel distribution business; and
ii)that the chance of the Taliban (presumably in the future) being informed of the applicant’s insignificant role is remote;
e)the Tribunal did not determine, nor purport to determine, whether the applicant was at risk of being imputed with an adverse profile on account of his connection with his uncle and brother; and
f)a claim of being imputed with an adverse profile in favour of Coalition forces clearly arose on the material and was required to be considered by the Tribunal, failure to do so constituted a jurisdictional error.
Minister’s submissions
The Minister’s submissions in opposition to Ground 3 were that:
a)the Tribunal accepted at CB 274 at [71] that the applicant's uncle and brother were killed as a result of their direct involvement in supplying fuel to Coalition forces in Afghanistan, however, emphasised that the applicant had an insignificant role in the fuel distribution venture, having only driven for his uncle on 5 or 6 occasions, and never having driven the fuel truck across the border into Afghanistan;
b)the Tribunal stated at CB 275 at [73] that it was not satisfied that the applicant was reported to the Taliban in relation to the fuel distribution, as his brother and uncle went missing in 2009, and the applicant was not approached, threatened or harmed by the local Taliban in relation to his uncle and brother's fuel distribution;
c)on that basis, the Tribunal was satisfied the applicant was not regarded as a supporter of the Afghan government or the international community or Coalition forces while in Pakistan: CB 275 at [73];
d)importantly, the Tribunal concluded at CB 275 at [73]-[74]:
73. … Further, having regard to all of the evidence and to the applicant's relatively insignificant profile, and to the country information, including information from Jane's as cited in the UK Home Office report indicating that the Pakistani Taliban is a collection of disparate groups that are heavily divided along regional and tribal lines, the Tribunal is satisfied that the chance of the Afghan Taliban being informed of the applicant's insignificant role is remote.
74. Having considered the applicant's claim in respect of his very limited association with his uncle and brother in the distribution of fuel venture, the Tribunal is not satisfied he faces a real chance of serious harm from the Taliban for this reason should he return to his village or province, or to Afghanistan generally.
e)it cannot be said that the Tribunal Decision involved jurisdictional error on the basis that the Tribunal “did not determine, nor purport to determine, whether the applicant was at risk of being imputed with an adverse profile on account of his connection”;
f)when read fairly and as a whole, the Tribunal Decision demonstrates that the Tribunal considered the claim the applicant feared persecution from the Taliban if he was to return to Afghanistan by reason of being imputed with an adverse profile by the Taliban because of his involvement with his uncle and brother in distributing fuel to Coalition forces in Afghanistan, and his relationship to them; and
g)in reality, this ground of application is an impermissible attack on the merits of the Tribunal Decision.
At hearing, it was submitted that:
a)the applicant made a specific claim his uncles would inform the Taliban and that claim was specifically rejected; and
b)there was no finding the Tribunal accepted that his brother and uncle’s killing was a result of being informed upon by the applicant’s uncles (but rather as a result of the brother and uncle’s “direct involvement” in the fuel distribution venture: CB 274 at [71]), and the Tribunal made a specific finding that the applicant’s uncles would not be informing the Afghani Taliban of the applicant’s involvement, which was quite minimal, because it did not accept that the applicant’s uncles still had any detrimental feelings about which would cause them to do so.
Consideration – ground 3
In setting out the nature of the assessment required to be made by it the Tribunal observed that the applicant alleged he might be persecuted by reason “of an imputed political opinion opposed to the Pakistani Taliban”: CB 274 at [70]. It is to be noted that this was what the applicant claimed, and did not reflect what the Tribunal said that it would consider, that is it did not necessarily indicate some limitation on what it was that the Tribunal would consider when considering the applicant’s claims. In any event, it is apparent that the Tribunal did not limit its consideration to whether the applicant would be persecuted or suffer harm at the hands of the Pakistani Taliban, but extended its consideration to include the Afghan Taliban. At CB 274-275 at [72] the Tribunal observed as follows:
72. However, based on the applicant’s evidence that he had driven for his uncle on 5 or 6 occasions over the period from 2006 until he departed Pakistan in 2011, and based on his evidence that he had never driven the fuel truck across the border into Afghanistan, the Tribunal formed the view that the applicant had an insignificant role in the fuel distribution venture. Further, the applicant acknowledged his main activity was in operating the video shop in Peshawar. Having regard to the applicant’s particular circumstances and his relatively insignificant role in the venture, and having regard to the country information cited in, for example, the UK Home Office where the ECtHR found ‘that not every person with links to the international community and forces would automatically be at risk in Afghanistan[’], the Tribunal does not accept the applicant would have been targeted for harm as he claims he was for this reason in Pakistan. Further, having regard to the country information which does not suggest that the Taliban in Afghanistan are necessarily linked to the Taliban in Pakistan, or that they would necessarily share information on a person who had a relatively insignificant role in the petrol distribution venture, the Tribunal is not satisfied the Taliban in Afghanistan would know anything of the applicant’s minimal involvement with the fuel distribution, or that he would be targeted for harm by the Taliban in Afghanistan for such involvement, should he return to Afghanistan. The Tribunal finds on the evidence before it, the applicant has no relevant connections to the international community or coalition forces, and does not have a profile, for example, as identified in the UNHCR (cited below).
The profile under the UNHCR Eligibility Guidelines For Assessing the International Protection Needs of Asylum Seekers from Afghanistan dated August 2013 (“UNHCR Guidelines”), referred to at CB 274-275 at [72] by the Tribunal, indicated that “individuals with the following profiles” require “a particularly careful examination of possible risks”, and went on to specify “Individuals associated with, or perceived as supportive of, the Government and the international community, including the international military forces”: CB 284 at [112].
In considering whether the applicant might suffer harm for reasons of generalised violence in Afghanistan the Tribunal noted that it “does not accept the applicant has any significant profile, or that he is perceived as having an adverse political opinion or as having anti-Islamic religious beliefs in Afghanistan for reasons already discussed, the Tribunal does not accept that he faces a real chance of being abducted and killed …. for his imputed political opinion, or for any other Convention ground while travelling on the relevant roads” (being the roads taking him back to the village of his birth in Afghanistan): CB 278 at [81].
A reading of the consideration of claims and evidence in the Tribunal Decision as a whole (and particularly from CB 274 at [69] to CB 278 at [81]) indicates that the Tribunal did consider whether the applicant was at risk of being imputed with an adverse profile on account of his connection with his uncle and brother, that connection arising specifically out of the conduct of the fuel distribution venture. Specifically, the Tribunal found that the applicant’s role in the fuel distribution venture was “insignificant”: CB 274 at [72], and that in his particular circumstances (which can fairly be read as including a reference to the involvement of his uncle and brother) and having regard to country information which indicated that not every person with links to the international community and forces would automatically be at risk in Afghanistan, the Tribunal accepted that the applicant would not have been targeted for harm for the reasons he claimed in Pakistan: CB 274 at [72]. Having cited country information which indicated that the applicant would not automatically be at risk by reason of links to the international community and forces in Afghanistan, the Tribunal found that there were not necessarily links between the Pakistani Taliban and the Afghanistan Taliban, and that they would not necessarily share information on a person with a relatively insignificant role in the fuel distribution venture, and the Tribunal was not therefore satisfied that the Taliban in Afghanistan would know anything of the applicant’s involvement in the fuel distribution venture or that he would be targeted for harm by the Taliban in Afghanistan for that involvement, and found on the evidence that the applicant had no relevant connections to the international community or Coalition forces and did not have a profile as identified in the UNHCR Guidelines: CB 274-275 at [72]. The Tribunal did therefore consider the applicant’s profile in the context of the fuel distribution venture which was the connection to his uncle and brother.
The Tribunal went on to find that the applicant would not be regarded as a supporter of the Afghanistan government or of the international community or Coalition forces while in Pakistan, and then having regard to the evidence of the applicant’s relatively insignificant role and to the country information was satisfied that the chance that the Afghanistan Taliban being informed of the applicant’s insignificant role was remote: CB 275 at [73].
In relation to the UNHCR profile the Tribunal referred to country information in the UNHCR Guidelines which indicated that individuals whose profiles required a particularly careful examination of possible risks included individuals associated with, or perceived as supportive of, the Afghanistan government and the international community, including the international military forces: CB 284 at [112]. In this regard, on the evidence before it the Tribunal found that the applicant had no relevant connections to the international community or Coalition forces and did not have a profile of this type: CB 274-275 at [72]. That was a finding of fact based on the evidence which it would be impermissible for this Court to review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
That the Tribunal considered whether or not the applicant had a relevant profile which put him at risk is affirmed by the Tribunal’s findings with respect to the issue of generalised violence in Afghanistan (set out at [28] above), and the Tribunal’s findings (at CB 278 at [81]) that the applicant:
a)does not have any significant profile, or is perceived as having an adverse political opinion in Afghanistan; and
b)does not face a real chance of being abducted and killed for his imputed political opinion, or for any other Convention ground, while travelling on the roads that the applicant was required to travel in returning to the village of his birth.
In all of the above circumstances, and given the findings made by the Tribunal, the Court is satisfied that the Tribunal did consider whether the applicant would have been imputed with an adverse profile by reason of being connected to his uncle and brother in the fuel distribution venture if he returned to Afghanistan, and found that not to be the case. To find otherwise would require a reading of the Tribunal Decision which is at odds with what the Tribunal has found, and would constitute impermissible merits review contrary to the proper approach to be adopted by this Court on judicial review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusion and orders
The Court has concluded that neither of the grounds relied on in the Further Amended Judicial Review Application establish jurisdictional error in the Tribunal Decision. It follows that the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 January 2018