BFE15 v Minister for Immigration - [2016] FCCA 1462

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFE15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1462

Catchwords:
MIGRATION – Protection visa application – lack of procedural fairness.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169
MZYOI v Minister for Immigration and Citizenship [2012] FCA 868

Applicant:

BFE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 40 of 2015

Judgment of:

Judge Young

Hearing date:

16 February 2016

Date of Last Submission:

16 February 2016

Delivered at:

Darwin

Delivered on:

16 June 2016

REPRESENTATION

Counsel for the Applicant:

Ms Grinberg

Solicitors for the Applicant:

Eric Hutton, Solicitor

Solicitors for the Respondents:

Ms S Newman of Clayton Utz

ORDERS

The decision of the Administrative Appeals Tribunal be set aside.
The matter be remitted to the Administrative Appeals Tribunal (differently constituted) for re-consideration.
The first respondent pay the applicant’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 40 of 2015

BFE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision by the Administrative Appeals Tribunal refusing an application for a protection visa.
The applicant is a citizen of Pakistan. He is 33 years old. He left Pakistan in about 2012 for Malaysia and lived there until April 2014. On 7 April 2014 he arrived at Perth airport using a fraudulently altered Malaysian passport. He subsequently made a claim for a protection visa.
The applicant claimed to have a well-founded fear of persecution in his home country, Pakistan. He claimed to have been an adherent of the Sunni sect of Islam who transferred his adherence to the Shia sect of Islam in 2010. The applicant claimed that as a result he was then subjected to threats of harm from adherents of the Sunni sect of Islam (who make up the majority of the population of Pakistan).
The applicant claimed that sometime later he told a childhood friend about his decision to adopt Shia Islam. The childhood friend was, he said, an influential Sunni religious leader who strongly disapproved. He claimed that thereafter anonymous threats were made to him and his family. He claimed the anonymous threats stemmed from Sunni extremists who had been informed about him by his childhood friend. He also claimed that his family was pressured to expel him and he was then forced to flee to another town for his safety. He claimed that after about three months in the other town he returned to his home in 2011 to attend a Shia religious celebration and, during that celebration, was the subject of an assassination attempt by Sunni extremists. He said that in 2012 he was helped to flee Pakistan to Malaysia by members of the Shia community. He lived in Malaysia for about two years before coming to Australia.
The delegate of the Minister accepted that the applicant converted from Sunni to Shia Islam in 2010, that the applicant began receiving threatening letters and phone calls two or three months prior to August 2011, that the applicant then moved to another town, Gujranwala, that the applicant returned to his home village for Shia religious celebrations on 19 August 2011 (sometimes referred to as “19 Ramadan 2011” in the materials) and was shot at while acting as “security” at the celebration and that the applicant returned to Gujranwala before relocating to Lahore where he lived until March 2012.
The delegate, while accepting that threats were made to the applicant, did not accept that these threats were associated with his former childhood friend. The delegate suggested that the threats may have stemmed from his local community noting his participation in Shia observance. The delegate did not accept that the applicant had a fear of harm from his former childhood friend. The delegate did not accept that the applicant was the victim of a targeted assassination attempt. The delegate suggested that, rather, the applicant was the coincidental victim of a more general attack on the Shia congregation.
The delegate found that there was no official discrimination against Shia Muslims in Pakistan and that the violence against Shia Muslims is usually perpetrated by militants or occurs at a community level. The delegate found that there was a remote chance of harm to the applicant and rejected the application.
On an application for review to the Tribunal the applicant reasserted his claim that he was specifically targeted and claimed that his childhood friend was responsible. He claimed that the childhood friend had informed on him to Sunni militant groups who had targeted him and would continue to target him for assassination.
The Tribunal accepted that the applicant had adopted Shia Islam but refused to accept that he had told his former childhood friend about his adherence to Shia Islam or that he or his family had received threats from extremist groups or anyone else.
The Tribunal found that the applicant did not face a real chance of persecution from his family, his childhood friend or anyone else because of his “conversion” or because of his religion or membership of a particular social group or any other Convention reason.
The single ground of judicial review is:
The Tribunal’s decision dated 12 June 2015 is affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness and failed to comply with its obligations under section 425 (1) of the Act.
Particulars
(a)In the decision under review by the Tribunal, a delegate of the first respondent accepted that, prior to the applicant’s departure from Pakistan, the applicant and his family had received threatening letters and phone calls in relation to the application (sic) conversion to the Shia Muslim faith.
(b)In contrast to this, the Tribunal did not accept that the applicant or his father had received any threatening letters or phone calls because of the applicant’s conversion.
(c)The Tribunal failed to notify the applicant that it was likely to make an adverse finding on an important matter on which the delegate had accepted the applicant’s claims, and so failed to notify the applicant with these matters are issues arising in relation to the decision under review.
The applicant relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[1] where the High Court considered the obligations imposed on the Tribunal by section 425 of the Migration Act 1958:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant[2].
[1] (2006) 228 CLR 152.
[2] per the Court at [35].
If the Tribunal proposes to make an adverse finding on a matter that the delegate accepted it should notify the applicant that it has a concern about that matter[3].
[3] see SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 at [14] and also MZYOI v Minister for Immigration and Citizenship [2012] FCA 868 at [92].
The respondent did not dispute the applicable law but submitted that there was no error. The respondent made two submissions, so far as I can discern, in support of that proposition:
(1) the Tribunal was not required to put the applicant on notice that it may not accept he received threats because the applicant “disclaimed” the delegate’s finding and
(2) the Tribunal’s questions to the applicant were sufficient to put him on notice that it may not accept that he had received threats as he claimed.
In the first submission the respondent asserted that the applicant had “expressly disclaimed” the delegate’s relevant findings. The delegate found that threats were not associated with the former childhood friend but more likely resulted from members of the local community noting the applicant’s Shia observance.
It is true that the applicant asserted before the Tribunal that the delegate was wrong to find that the threats were not associated with the former childhood friend. Presumably, he wished to establish that he was at risk as the specific target of persecution rather than at risk from general sectarian violence and intolerance. However, the applicant did not change the nature of his claim which was that (a) he was threatened with harm and (b) as a result of telling his former childhood friend about his adoption of Shia Islam. The delegate accepted (a) but did not accept (b). The delegate accepted one element of the applicant’s claim but not another. If the Tribunal proposed to depart from that finding it must, in my view, give notice to the applicant that both elements were now in issue. I am unable to agree with the respondent’s submission on this point.
The respondent’s second submission was in two parts. It was said that the Tribunal put the applicant on notice that (a) his claim of telling his former childhood friend may not be accepted and (b) it may not be accepted that the applicant was fearful of returning to his home town which he claimed was the result of threats. Consideration of this submission requires an assessment of the questions put by the Tribunal. The respondent points to four questions that it says put the applicant “squarely on notice” of the issue.
At page 15 of the transcript of the Tribunal hearing the applicant gave evidence about his return to his home village for the Shia celebration when the congregation was attacked. This was after the threats had allegedly been made to the applicant. The member asks “Why would you go back to your home village?” The applicant answered (through an interpreter):
“It was actually a special function for which I actually went, but I didn’t actually go home and I didn’t go and meet the previous (indistinct) I had gone straight to the place where this function was going to be held on that particular day”.
The member then asks “Just let me get this clear. So you have never attended anything in your home village up until, really, this special event on 19^th of Ramadan 2011?”
The intention behind the member’s questioning appears to me to be ambiguous. It does not obviously put the applicant on notice that his claim of receiving threats of harm was doubted. Rather, it appears consistent with the member accepting that threats were made but expressing doubt that the applicant would have returned to his home village at the time he alleged an attack.
At page 16 of the transcript the member repeats the applicant’s evidence about threats and says “I’m sorry, I’m having a little difficulty accepting why you would suddenly after all of that return to your home village”. The applicant answers
“Firstly, there was no (indistinct) around there, and, secondly, I had been living in that town only for two or three months, so I didn’t have very many attendances (sic) in that town. It is true that we have received threatening letters and there (sic) some threats against myself and my family, but in spite of that I did actually think that I can go and celebrate the event in my hometown along with some old friends. Due to those threatening letters, there was a little bit of concern that there was a possibility of something happening, but it was only after the attack took place that it became very certain and then that’s when I realised they were very serious about threats”.
The member then appeared to move on to another subject “Do you have many Shia friends?” In my view, question put to the applicant falls short of putting him on notice that his claims about threats were doubted.
At pages 16-17 of the transcript the member questions the applicant about whether he had any Shia friends in his home town, impliedly doubting why he would return to his home town for a Shia celebration. The applicant answered that he did not have close Shia friends in his home town but “they were more like acquaintances”. Later on page 17 the member asks “Did you tell anybody you were you (sic) going there that day?” Again, this line of questioning appears to me to be ambiguous at best and suggestive that the member doubted that the applicant returned to his home town for the Shia celebration where he was attacked rather than doubted the existence of the threats.
The respondent also points to the passage of questioning at pages 18-19 of the transcript where the member asks
“So why did you tell your childhood friend? You hadn’t told your family, apart from your mother and your girlfriend, you weren’t praying in the open, you weren’t attending Shia functions openly, and then you suddenly tell a childhood friend who is a Sunni and studying to be a leader”.
For the reasons given above I do not accept the respondent’s submission that the applicant’s claim that he had told his former childhood friend about his adoption of Shia observance was identical to the claim that he had been subjected to threats. They are connected but they are separate. One was accepted by the delegate and the other was not. In my view, whether or not the member put the applicant on notice that his claim about his former childhood was in issue is irrelevant to the point raised in this application.
I find that the member did not put the applicant on notice that the claims of threats which had been accepted by the delegate were in issue. Consequently, the applicant was denied procedural fairness and the decision must be quashed. I will make orders accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 16 June 2016