BFB16 v Minister for Immigration

[2016] FCCA 2819

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2819

Catchwords:
MIGRATION– Review of Refugee Review Tribunal decision – Status – refugee status – refusal – no jurisdictional error – application dismissed – Applicant pay the Respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: BFB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 446 of 2016

Judgment of: Judge Vasta

Hearing date: 10 October 2016

Date of Last Submission: 10 October 2016

Delivered at: Brisbane

Delivered on: 10 October 2016

REPRESENTATION

Counsel for the Applicant: Mr P.A. Travers

Solicitors for the Applicant: GUPTA LAWYERS

Counsel for the First Respondent: Mr J.D. Byrnes

Solicitors for the First Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 19 May 2016 be dismissed.

2. That the Applicant pay costs to the First Respondent fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 446 of 2016

BFB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed in this Court on 19 May 2016, the Applicant BFB16 seeks a review of the decision of the Administrative Appeals Tribunal that affirmed a previous decision by the delegate of the Minister not to grant the Applicant a protection visa. 

2. The facts, in short compass, are that the Applicant is a person who has come from Afghanistan. He worked for the government in the Ministry of Justice from 1986 to 2003 and in the prison department from 2003 to 2011. 

3. He claims that he was teaching literacy to the prisoners.  He claims that, in 2011, while he was working in the prison in Kabul, there were two Taliban prisoners (and he has named them) who were high-ranking Taliban commanders who demanded of him that he facilitate their escape or facilitate their release at any cost.  He claimed that he was targeted because he was one of the very few people who had such regular close contact with the prisoners. 

4. He told those people that he could not assist them as he did not have that capacity.  Notwithstanding those remarks, the two Taliban prisoners continued to harass him.  It got to the point that he felt as though he had to get away, and he took twenty days leave from the prison work. 

5. During that time that he was still on leave, he said that there was a knock on his door at about 8:00pm and his son answered the door and that was the last he ever saw of his son.

6. Further, he claims that he received a phone call after that from unnamed people who said that they did have his son and that if the two Taliban officials were not released within two days, that they would kill his son even though he protested that he could not do anything to procure the release.  He did not do anything to procure the release because he simply was not able to, and his son was murdered.

7. He said that after that, he kept receiving threats and demands from the men who said that they would kill his whole family if he did not help them.  So he then fled to a place about an hour’s drive from Kabul and his family went to another place about one and a half hours away in a different direction.  They were hiding for about six months.  He then left Afghanistan and went to Dubai; then from Dubai to Indonesia; then got on a boat and arrived here as an unlawful maritime arrival.

8. He told the Tribunal that he fears that if he returns to Afghanistan, the Taliban will kill him because he did not help them release their prisoners and he has no doubt that, notwithstanding the effluxion of time, they would kill him now if he returned to Afghanistan. 

9. He does not think that the Afghan authorities can, or will, protect him if he returns because he was told not to contact the police. He does not think that relocation to another area in Afghanistan is a reasonable option as the Taliban are spread all across the country.

10. He said to the Tribunal that whilst he understands that he could return to a particular area within Kabul where one would think that he may be safe, he said that he could still encounter potential Taliban sympathisers.  As the Applicant’s son had already been killed by the Taliban and that he had sought asylum in the West, he was at high risk of becoming known to the Taliban community and might become a victim of future attempted extortions as the Taliban insurgency gained momentum. 

11. Therefore, the Applicant said that he did have a well-founded fear of both persecution and of serious harm if he were to be taken back to Afghanistan.

12. The Tribunal did not accept the Applicant as a witness of truth, pointing out a number of illogicalities in his evidence and also with regard to country information that was contrary to the story of the Applicant.  In particular, the country information was obtained about the jail that he said that he was at and was teaching literacy. The Tribunal found it highly dubious that Taliban prisoners, who were high-ranking, would have been in that particular prison as it was a low security transitional detention centre.  The Applicant then explained to the Tribunal that they were there for hospital treatment. 

13. The Tribunal still did not find it credible that if the goal of the Taliban was to get these two people out of the detention centre that they would pursue it through a literacy teacher, and the roundabout processes that are described as to how they have gone about this aim, did not ring true to the Tribunal. 

14. When the Tribunal queried as to why dangerous Taliban prisoners would have access to the services of a literacy teacher, the Applicant stated that the human rights organisations were responsible. The Tribunal found that it was implausible that it was not the government, but the Afghan human rights movement which set the standards in prisons and detention centres, ensuring that the Taliban were afforded human rights and fair treatment. 

15. The Tribunal noted that country information, including some country information that the Applicant gave the Tribunal, indicated that human rights organisations continue to draw attention to serious abuses of human rights in Afghan prisons and detention centres against activists and others, and, that while there have been some positive developments regarding the legal framework around Afghan prisons, implementation of these laws is weak and detainees often suffer violation of their rights.

16. The Tribunal expressed the view that the Applicant’s explanation was ill-informed and that there was nowhere near the influence that the Afghan human rights centre had in the prison. 

17. As a result of that, the Tribunal also did not accept that the Applicant worked as a literacy teacher in that detention centre.  The Tribunal’s view was compounded by the DFAT advice cited in the Department’s decision that the detention centre was used for persons facing sentencing and appealing their conviction before the Court, who were normally detained there for short periods.  In that case, the Tribunal found that it was unlikely that they would provide educational services for prisoners while they were there in transition. So, in effect, the Tribunal did not accept the story of the Applicant. 

18. The Tribunal also did not accept that there was a real chance or real risk that if he returned to Afghanistan, he would become the target of future attempted extortions by the Taliban.  The Tribunal did not accept that he had a well-founded fear of persecution for his imputed political opinion as an anti-Taliban Pashtun Sunni.  The Tribunal did not accept that the Applicant would be targeted by the insurgents for the reasons of the claimed events that the Tribunal did not accept had actually occurred.

19. The grounds upon which the Applicant has come to this Court are: 

    “1. The Tribunal engaged in conduct which amounted to jurisdictional error by considering irrelevant information, in particular the applicant’s apparent lack of detailed understanding of the management and operation of the Tawqif Khana Remand Centre, in making findings of fact and credit with regard to the applicant.”

    As I said in the course of this hearing, such is not considering irrelevant information, in my view. 

20. My reading of the authorities makes me conclude that the concept of “taking into account irrelevant considerations” or “failing to take into account relevant considerations” revolves around a very simple principle. That is, did the Tribunal take into account a circumstance upon which it was prohibited to consider or did the Tribunal not take into its consideration a circumstance which it was mandated to consider. If it did the former, then it had taken into account an irrelevant consideration.  If it did the latter, then it had not taken into account a relevant consideration. 

21. What the irrelevant consideration that is said to have been taken into consideration here was this aspect of the detailed understanding of the running of the prison.  It was said that such is not particularly logical.  One can work in the prison and do what the job that one has without having to have such a detailed knowledge.  That may be so, and it may be that that may not be a typically logical consideration by the Tribunal but that does not mean that it is an irrelevant consideration.  It is certainly just part of the factual matrix.  The factual matrix cannot be impugned simply because there is another view of the evidence that is open.

22. In the end, this is only one part of the factual matrix.  As I will explain a little bit later on, there is only one way in which the factual matrix may be able to be impugned in a consideration of these matters by a Court that is reviewing a decision of the AAT exercising its powers under the Migration Act 1958 (Cth) (“the Act”).

23. The second ground was that

    “2. The Tribunal fell into jurisdictional error by acting unreasonably in its consideration of the application and determination of the risks to the applicant’s safety if the application was refused”. 

24. In submissions before the Court, this was expanded to explain that the Tribunal did have before it documents which were untranslated. It was submitted that the Tribunal had the facilities by which to translate those documents and by not translating them, the Tribunal had acted unreasonably. It was further submitted that when one had a look at the way in which the Tribunal ended up finding that there was no real risk to the Applicant, that such a finding that was unreasonable.

25. As was also said in the course of the hearing, “unreasonableness” or as it may be termed “legal unreasonableness” or “Wednesbury unreasonableness” really has no place in this form of review.  The way in which the Court looks at whether something could be said to be unreasonable is not in the way that has been submitted.

26. What the Court must do when looking at both of these grounds together is, having a look at all of the evidence that was properly before the Tribunal, was the decision that was made as far as the factual circumstance upon which to base the decision open on the evidence.  

27. It is not whether that decision is what the Court should have made; nor is it is whether another conclusion should have been drawn.  It is whether the conclusion made by the Tribunal could have been drawn.  If the decision or the conclusion made by the Tribunal was open to it, then there is no jurisdictional error. 

28. Much has been made of the fact that these documents were not translated. It is said that those documents were documents that showed that the Applicant had been employed at the prison at the times that he said that he was and also that he had taken the 20 days of leave that he spoke about. 

29. But even if I were to assume that those matters were in the documents, the documents were credible, and that evidence was properly before the Tribunal, such evidence would not vitiate the conclusions of the Tribunal.  In other words, the conclusions made by the Tribunal were still open to it.

30. As was seen when I gave a recitation of the facts that the Applicant gave to the Tribunal, the inferences and conclusions made by the Tribunal were conclusions that were very much open to it.  As any person knows that there may very well be some elements of truth to a particular story upon which the then more fantastic elements are then added so as to try and convince someone that the story given is actually true. 

31. Whether that has happened here is not a matter for me to say.  What I have to look at is whether the findings made by the Tribunal are still open on that evidence that would have been properly before the Court. 

32. The findings are that the Tribunal did not accept the story. If the Applicant were shown to have definitely been employed and been away for 20 days that would not have meant that the reasons for the Tribunal’s rejection of the Applicant’s evidence were any the less valid. 

33. In the same way, the irrelevant consideration about having the detailed understanding of the running of the prison, even if that were resolved in the Applicant’s favour in the way I had spoken of earlier, that also does not undermine the reasoning or the conclusion that the Tribunal came to. 

34. It is not for me to say whether I agree or disagree with the ultimate conclusion.  It is simply whether it was open.

35. In my view, having a look at all of the facts that were before the Tribunal, and assuming that the documents untranslated do say what it is that the Applicant says, nevertheless the Tribunal’s findings were open.

36. In that case, there is no jurisdictional error.  I, therefore, dismiss the application. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 12 December 2016