BDT16 v Minister for Immigration

[2016] FCCA 2091

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDT16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2091

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credit findings against the applicant – whether the Tribunal failed to apply the relevant law – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 476

Applicant: BDT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1200 of 2016

Judgment of: Judge Street

Hearing date: 15 August 2016

Date of Last Submission: 15 August 2016

Delivered at: Sydney

Delivered on: 15 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Mr D McLaren
Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1200 of 2016

BDT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 14 April 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Pakistan. The applicant applied for a Vocational Education Sector (TU-572) visa offshore on 19 December 2011. That was refused on 14 February 2012.

2. The applicant applied for a Tourist subclass (FA-600) offshore visa on 27 March 2013.  On 12 April 2013, the subclass (FA-600) visa was granted, valid until 30 September 2013.  It was not until 30 June 2013 that the applicant arrived in Australia.  On 30 September 2013, an application for a Vocational Education Sector (TU-572) visa was lodged.  That was refused on 16 October 2013.  It was not until 21 January 2014 that the applicant lodged an application for protection.

3. In summary, the applicant claimed to fear harm, by reasons of being a Shia Muslim and his Mohajir ethnicity.  The applicant claimed to fear harm from the police, anti-Shia or anti-Mohajir groups.  The applicant claimed that the authorities would not protect him because of his ethnicity and his religion, and that he would be unsafe anywhere in Pakistan.  In support of his claims, the applicant provided police reports and letters in relation to particular incidents. Further, the applicant claimed that because of his television appearances, he was well-known throughout Pakistan.

4. On 17 October 2014, the delegate refused the applicant’s application. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason and was not satisfied that the applicant’s fear was well-founded.  The delegate also was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant would be subjected to significant harm.

5. On 21 October 2014, the applicant lodged an application for review by the Tribunal.  By letter dated 3 February 2016, the applicant was invited to attend a Tribunal hearing on 3 March 2016.  The applicant’s representative requested an adjournment, which was refused on 10 February 2016. The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The applicant’s representative was provided with an opportunity to provide further information by 17 March 2016.  On 11 March 2016, the Tribunal wrote to the applicant, forwarding the applicant a copy of the recording of the hearing. The letter also made reference to the genuineness of the documents that the applicant had provided and stated that according to a Department of Foreign Affairs and Trade report, document fraud is endemic in Pakistan and that it is relatively simple to fraudulently produce police-issued FIRs using existing FIR book numbers. 

6. Further, the letter noted that there is credible evidence of police in Pakistan accepting bribes to verify forged FIRs. The applicant was invited to comment in relation to that letter. By letter dated 28 March 2016, the applicant’s legal/migration representative responded, providing detailed submissions.

7. The Tribunal identified the relevant law and set out the applicant’s claims and evidence.  The Tribunal summarised the material at the hearing and the material received post-hearing.  The Tribunal did not accept that the applicant fled Pakistan because he feared that he would face serious harm from extremist groups in Pakistan.

8. The Tribunal found that the applicant’s claims and fears were implausible. The Tribunal found that the applicant did not leave Pakistan until over two months after receiving the Australian visa. The Tribunal found that the applicant was not a credible witness. The Tribunal did not accept that the applicant would have remained in Pakistan for five months after he received a death threat and nearly four months after two attempts were made on his life before leaving Pakistan when he had means to do so at any time.

9. The Tribunal was not satisfied that the applicant would have failed to apply for protection in Australia until seven months after his arrival if he had fled Pakistan because he feared for his life for those reasons.  The Tribunal found that the applicant had concocted the claim that he had received a death threat from an extremist group that made two attempts on his life for the purpose of obtaining protection in Australia.

10. The Tribunal took into account the police reports and letters provided by the applicant in support of his claims.  However, in light of DFAT country information in relation to the fraudulent documents, the Tribunal gave these documents very little weight.  The Tribunal observed that even if it were to accept that the applicant had received the death threat and was involved in the two encounters with unknown men while he was driving in the street, the evidence that the applicant provided regarding these events did not suggest that he was targeted by an extremist group or that he was of continuing adverse interest to an extremist group or anyone else at the time he left Pakistan.

11. The Tribunal did not accept that the applicant dedicated a significant amount of time to the Jafaria Disaster Cell Welfare Organisation (“JDC”) and did not accept that his occasional work for the JDC would have caused him to become a well-known Shia activist in his home region.  The Tribunal made reference to the applicant’s television appearances and did not accept that appearing on the television programs would have resulted in the applicant becoming well-known throughout Pakistan or even in his home region.  The Tribunal noted that the programs did not deal with religious issues and was not satisfied that they would have caused or even contributed to a perception that the applicant was a Shia activist.  The Tribunal did not accept that the applicant’s past or any future involvement on these programs would have any impact on the applicant’s treatment if he returned to Pakistan. 

12. The Tribunal did not accept that there is a real chance that the applicant will face serious harm upon his return to Pakistan because of his Shia religion. The Tribunal did not accept that there is a real chance that the applicant would be persecuted if he returns to Pakistan because he is a Mohajir. Nor did the Tribunal accept that the applicant faced a real chance of facing serious harm in Pakistan because he holds political views unacceptable to the Pakistani government. Nor did the Tribunal accept that the applicant had a well-founded fear of persecution for a Refugees Convention reason and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention and found that the applicant did not meet the criterion under s.36(2)(a).

13. The Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there was a real risk of him suffering significant harm.  The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

14. On 30 June 2016, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  At the hearing, the applicant handed up an Outline of Submissions that was marked as an exhibit.  The grounds of the application are as follows:

    1. The Tribunal accepted that there were attacks in Karachi on Shia by militants and that the applicant was involved in Shia activities at a mosque which should lead that I face a well founded fear of persecution by virtue of being a Shia. The Tribunal in its reasoning failed to consider whether the applicant might face a well founded fear of persecution in the future by virtue of attending a mosque or religious process in the future. The Tribunal did not deal with the claim.

    2. The Tribunal failed to accept that the applicant will face a risk and significant harm and misunderstood the issue of being willing to provide protection to Shia which is different from the applicant actually will be able to obtain protection.

    3. Particulars

    A) The Tribunal failed to lawfully deal with a claim before it as to the Applicant facing a well founded fear of persecution or significant harm by virtue of his attendance upon his return at Shia mosques, religious processions or Shia enclaves in Karachi.

    B) When considering whether there was a real risk that the applicant would face significant harm on return to Pakistan because of Shia religion, the Tribunal erred by considering whether the Pakistani authorities were prepared to provide protection to Shias without asking itself whether that protection was practically available to the Applicant having regard to all of his circumstances and the circumstances of the police force (such as its resources), or by failing to ask itself whether the Applicant could obtain the protection from the Pakistani authorities (being the test prescribed by section 36(2B)(b) of the Migration Act.

    (Errors in original)

15. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.  The Court explained to the applicant that if satisfied the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing by the Tribunal.

16. The Court further explained to the applicant that if it was not satisfied that the decision was affected by relevant legal error, it would dismiss the applicant’s application.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

17. In relation to ground 1, it is apparent that the Tribunal did deal with the applicant’s claims to fear harm by reason of his religion and by reason of his ethnicity.  In substance, ground 1 is an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 1 fails to make out any jurisdictional error. 

18. Ground 2 asserts that the Tribunal misunderstood the risk of harm that the applicant would face upon his return to Pakistan.  There is nothing on the face of the Tribunal’s reasons or the transcript to support any misunderstanding by the Tribunal. The Court was taken by the applicant to particular parts of the transcript. Nothing in the transcript supported any misunderstanding of the applicant’s claims by the Tribunal. 

19. The Tribunal dealt with the applicant’s alleged claim by reason of TV programs on which the applicant appeared.  In relation to the Tribunal’s findings in respect of the documents provided by the applicant, the adverse findings were open to the Tribunal and they cannot be said to lack an evident and intelligible justification. It is a matter for the Tribunal what weight it seeks to give to the evidence before it. The Tribunal properly identified the applicant’s claims and evidence, and the relevant law to be applied.

20. I am satisfied on the material before the Court that the applicant had a genuine and meaningful hearing.  The particulars to ground 2 are, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 2 fails to make out any jurisdictional error. 

21. The adverse findings by the Tribunal in relation to complementary protection were open on the material before the Tribunal.  On the material before the Court, the Tribunal correctly applied the relevant law and complied with its statutory obligations.  The Court is not satisfied that there is any material to establish a denial of procedural fairness to the applicant in the conduct of the Tribunal’s review.  The application fails to identify any jurisdictional error. 

22. In relation to the applicant’s Outline of Submissions, the assertion that the Tribunal denied the applicant natural justice and fairness by reaching a conclusion not based on the facts, is in substance, an impermissible challenge to the adverse findings made by the Tribunal.  The adverse findings in relation to the applicant’s credit cannot be said to lack an evident and intelligible justification. The adverse findings by the Tribunal were open to it.  As noted above, it was a matter for the Tribunal what weight it gives to the documents provided by the applicant.  Nothing in para.2(a) of the applicant’s Outline of Submissions identifies any jurisdictional error.

23. In relation to para.2(b) of the applicant’s Outline of Submissions, the Tribunal took into account the office that the applicant allegedly held.  Nothing in para.2(b) identifies any jurisdictional error.

24. In regard to para.2(c) it was a matter for the Tribunal to determine what country information it accepted.  There was no matter of obvious inquiry in respect of easily ascertainable information that the Tribunal was required to pursue on the material before the Tribunal.  Paragraph 2(c) does not identify any jurisdictional error.

25. In relation to para.2(d) of the applicant’s Outline of Submissions, it is apparent that the Tribunal took into account the applicant’s claims in relation to the JDC and the adverse findings by the Tribunal were open on the material before the Tribunal.  Paragraph 2(d) fails to identify any jurisdictional error. 

26. In relation to para.2(e) of the applicant’s Outline of Submissions, the Tribunal made reference to the applicant’s television appearance and the adverse findings by the Tribunal were open to the Tribunal. Paragraph 2(e) fails to identify any jurisdictional error. 

27. The proposition in para.2(f) of the applicant’s Outline of Submissions that the Tribunal acted contrary to the evidence before it is untenable.  The adverse findings by the Tribunal were open on the evidence before the Tribunal.  Nothing in the transcript or the material before the Tribunal identifies any failure by the Tribunal to take into account relevant evidence. Paragraph 2(f) fails to identify any jurisdictional error.

28. In relation to para.3 of the applicant’s Outline of Submissions, this is, in substance, an impermissible invitation to this Court to engage in merits review.  This Court has no power to engage in a merits review.  Paragraph 3 fails to identify any jurisdictional error.

29. In relation to para.4, the Tribunal identified the applicant’s claims and evidence. The assertion that there was no evidence to justify the Tribunal’s decision is without substance.  The Tribunal’s reasons were orthodox reasons and open to the Tribunal on the material before it.  Paragraph 4 of the submissions fails to identify any jurisdictional error.

30. In relation to para.5, the applicant sought to cavil with the Tribunal’s rejection of his evidence. It was a matter for the Tribunal to assess the applicant’s credit and the adverse findings were open to the Tribunal. Paragraph 5 fails to identify any jurisdictional error. 

31. The assertion in para.6 that the Tribunal’s reasons were unreasonable is not supported by evidence and lacks substance.  Paragraph 6 is, in substance, an impermissible challenge to the merits of the matter, which is for the Tribunal to determine.  Paragraph 6 of the Outline of Submissions fails to identify a jurisdictional error.

32. From the bar table, the applicant took the Court to the transcript and sought to assert that the Tribunal had misunderstood his evidence.  Nothing said by the applicant from the bar table by reference to the transcript identified any misunderstanding by the Tribunal of the applicant’s evidence.  The applicant sought to cavil with the Tribunal’s adverse findings on credit in relation to the applicant.  Nothing said by the applicant identified any basis upon which it could be said that the adverse findings on credit were not open to the Tribunal. 

33. The applicant referred to the rejection of the documents that he sought to rely upon.  It is apparent that the applicant was given an opportunity to respond to the Tribunal’s concerns over the authenticity of the documents provided by him in the letter dated 11 March 2016.  I should note that the transcript also makes clear that the applicant’s credit was a live issue before the Tribunal.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 September 2016