BFF16 v Minister for Immigration

[2017] FCCA 3255

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3255

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – weight given to country information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A).

Cases cited:

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622.
NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10.

Applicant: BFF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1060 of 2016

Judgment of: Judge Hartnett

Hearing date: 11 December 2017

Delivered at: Melbourne

Delivered on: 20 December 2017

REPRESENTATION

Solicitor for the Applicant: Mr Boden

Solicitors for the Applicant: Starnet Legal

Solicitor appearing as Counsel for the First Respondent: Ms McInnes

Solicitors for the First Respondent: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1060 of 2016

BFF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed 4 December 2017, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent to refuse to grant the Applicant a Protection visa (‘the visa’).

2. The Applicant filed his original application on 20 May 2016.  By orders made by Registrar Buljan on 26 October 2016, the Applicant was to file and serve on or before 13 November 2017 any amended application, together with written submissions.

3. The Applicant’s amended application was filed out of time.  The Applicant also filed written submissions on 4 December 2017.  Likewise those written submissions were out of time. The First Respondent, whilst objecting to the filing of the material, submitted to the Court that the First Respondent was in a position to proceed, having sufficiently considered the amended application and submissions.  The Court determined that there would be leave for the amended application and submissions to be relied upon. 

4. The Applicant did not attend the hearing, but his Counsel and solicitor had the necessary instructions from the Applicant to proceed with submissions on the hearing of the application. The Applicant had indicated to both his Counsel and solicitor that he did not wish to attend the Court hearing.

5. The grounds of the amended application were three in number, but at hearing on 11 December 2017, the Applicant indicated that ground three of the grounds of application was not pressed.  That left two grounds, which were as follows:-

   “1. The Tribunal made a jurisdictional error by not considering claim [sic], especially when in paragraph [17] of Statement of Decision and Reasons it states that there was a risk.

   2. The Tribunal made an error by not considering the risk to Applicant’s life especially in light of arguments in paragraph [24] of [the] Statement of Decisions and Reasons.”

6. In submissions made on behalf of the Applicant, Counsel submitted to the Court that the Tribunal had failed to take into account relevant matters when it considered the risk of serious harm to the Applicant.  It was argued that the Tribunal looked only to whether there were fatalities in the Kurram Agency, rather than properly considering risk in terms of fatalities and injuries. 

7. On 11 December 2017, Counsel for the Applicant sought to rely upon further evidence that was not before the Tribunal.  Counsel indicated that the Applicant wished to introduce into evidence a Pakistani newspaper report from 2017, which it was said by Counsel (in abbreviated form) referred to three attacks in the relevant area occurring in a six-month period, with the Parachinar attack being the deadliest and killing 85 people. 

8. The First Respondent objected to the introduction of any fresh evidence, and referred the Court to the decision in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622. In that decision, Nicholson J considered the admission of fresh evidence by an Applicant in proceedings such as these.

9. His Honour said in paragraph 8 of that decision:-

   “...It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.  Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘...whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the Tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘...are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence:  see also at 385.  Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

10. The basis of leading the fresh evidence, the Applicant submits, is not to indicate to the Court that the Tribunal’s decision was wrong, but rather to indicate that there is now further evidence available, which was not available to the Tribunal at the time but which would have been relevant to the Tribunal’s decision.

11. In the Court’s view, the seeking to put before the Court of this fresh evidence goes to a factual conclusion reached by the Tribunal.  The evidence goes to a disagreement with the Tribunal’s factual finding and the Court determined at the hearing that it would not receive into evidence the newspaper report sought to be tendered by the Applicant. 

Background

1. The Applicant is a citizen of Pakistan, a Shia Muslim of Pashtun ethnicity.

2. The Applicant stated to the Tribunal that he was from the Kurram Agency, in the Federally Administered Tribal Areas (‘FATA’) of Pakistan.  He belongs to the Bangash tribe, but also claims association with the Turi tribe, given his wife and mother are members of that tribe and the association of Shias are linked with that tribe.

3. The Applicant lived in Rawalpindi from 2003 until early 2012, prior to leaving Pakistan.  His wife and four children stayed in Kurram Agency, and he visited them regularly, depending on the security situation and road access.  The Applicant told the Tribunal at hearing that none of his family members work, that is, his mother, four brothers and their respective families, and given the poor economic situation in Kurram Agency, he financially supports them all from Australia. 

4. The Applicant arrived in Australia as an unauthorised maritime arrival on 22 July 2012. The Applicant applied for a Protection visa on 14 November 2012.

5. On 18 July 2013, a delegate of the Minister refused to grant the Applicant the visa. The Applicant applied to the Tribunal for a review of the delegate’s decision and the decision was affirmed by a differently constituted Tribunal on 3 April 2014.

6. The Applicant applied to the Court for a review of the Tribunal decision of 3 April 2014 and on 29 October 2015, Judge McGuire remitted the matter to the Tribunal for reconsideration.

7. The Applicant appeared before the Tribunal on 31 March 2016 with the assistance of an interpreter.  He was represented by a migration agent. 

8. On 29 April 2016, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa. The Applicant then made the present application for judicial review.

The Applicant’s Claims

1. The Tribunal set out in paragraph 10 of its Statement of Decision and Reasons (‘the Decision Record’), correctly, the issue that was before it, namely:-

   “The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm from the Taliban or other Sunni extremists on return to Kurram Agency on account of Shia religion. It has been submitted that the applicant is at a higher risk than other Shias as he is from the Bangash tribe of the Kurram Agency, a Pashtun Shia tribe.  Also because of his association with the Turi tribe.  The representative has submitted that the applicant also faces a real chance of persecution on the basis of belonging to a particular social group of ‘Shias from Parachinar’.”

2. The Applicant claimed that, in 2003, he relocated to Rawalpindi in order to find work to support his family. He made frequent visits home, being Kurram Agency, from 2003 to 2012. When asked by the Tribunal at the hearing how often he had visited home in that nine-year period, the Applicant replied, as set out in paragraph 14 of the Decision Record, that:-

   “…it depended on the situation:  sometimes every three months, sometimes every seven or so months.  He said from 2007 – which is referred to as ‘war time’ – he could not go home very often, despite wanting to see his children and family.  He said the situation was very bad from 2007 up until now, with fighting, bomb blasts and suicide bombs, often resulting in the closure of the main road connecting Parachinar to Peshawar and Islamabad (the Thal-Parachinar road).  He said the road passes through mountainous areas where the Taliban and extremists hide and launch their attacks.  After 2007 whilst living in Rawalpindi he used to travel home on public transport as part of a convoy with army vehicles at the front and back of the group.  He said after 2007 his travel was very much restricted and the army convoys were not always available. When asked, the applicant said he did not experience any problems whilst travelling home (and returning to Rawalpindi) during this period, including from 2007, but noted that even with army protection there were risks, for example if the Taliban launched rockets or sniper attacks.”

3. The Applicant also claimed to fear harm from the Taliban or other Sunny extremists on return to Kurram Agency for reason of his Shia religion, his membership of the Bangash and the Turi tribes. 

The Tribunal Decision

1. The Tribunal accepted that the Applicant was a Shia Muslim of Pashtun ethnicity, a member of the Bangash tribe from Parachinar who had also an association with the Turi tribe as claimed.

2. The Tribunal accepted that there had been sectarian violence in Kurram Agency, particularly since 2007, as well as generalised violence as a result of militant activities and counter-insurgency campaigns. However at paragraph 17 of the Decision Record, the Tribunal said:-

   “…The Tribunal finds that the Applicant has not been threatened or harmed in the past in Kurram Agency or specifically targeted by the Taliban, or any other extremist group because he is a Shia or for any other reason. The Tribunal also notes that the Applicant’s family members have not been directly threatened or targeted by the Taliban in the past, including his four brothers, who remain living there. At hearing the Applicant said the situation there is very fluid, one never knows when something is going to happen, and his brothers could be going to the city to collect the money he sends and be involved in a bomb blast or something.”

3. Given its findings, the Tribunal went on to consider independent country information about the security situation in Kurram Agency in assessing whether or not the Applicant faced a real chance of serious harm for reasons of his Shia religion, Bangash tribe membership, imputed political opinion (because of his Turi association and Shia religion) or origins from Parachinar if he were to return to his home village in Kurram Agency now or in the reasonably foreseeable future as set out in paragraph 18 of the Decision Record.

4. The Tribunal noted the written submission made on behalf of the Applicant and in paragraphs 20 and 21 of the Decision Record, set out country information referred to in those submissions on behalf of the Applicant.  The Tribunal then went on to consider, in paragraphs 22 to 29 of its Decision Record, independent country information about the security situation in Kurram Agency and discussed with the Applicant that country information, including that which indicated that the situation had improved.  The Tribunal also considered the information provided by the Applicant’s representative about Shiahs in Pakistan, the Applicant’s concerns about ongoing insecurity in the region as well as the representative’s oral and written submissions.  Taking the most recent Department of Foreign Affairs and Trade (‘DFAT’) report into account, the Tribunal was of the view that the country information indicated that a level of security had been restored to Kurram Agency. 

5. The Tribunal said in paragraph 30 of its Decision Record:-

   “The Tribunal has had regard to the applicant’s concerns about ongoing insecurity in the region as well as the representative’s oral and written submissions, including about the nature of terrorism and how it operates. That is, she argued that the situation remains stable for a period of time, then escalates (referring, among other things, to Defence R&D Canada’s analysis of terrorism group responses to government countermeasures). She argued that this cycle has been continuous in Kurram Agency and FATA more broadly. The Tribunal acknowledges these concerns and that the situation can change and fluctuate, as indicated in the FRC’s annual security report for 2015 cited above for example, and that there is an element of vulnerability in the government’s security measures, as illustrated by the December 2015 attack in Parachinar (discussed in more detail below). However, taking into account the most recent DFAT assessment, as well as country information from other sources as discussed, the Tribunal is of the view that the country information indicates that a level of security has been restored to Kurram Agency.” 

6. The Tribunal accepted that there continue to be ongoing sectarian violence in FATA including in Kurram Agency where the Applicant was from, as detailed in the country information discussed with the Applicant, including as set out in the representative’s submission.  The Tribunal noted further:-

   “32. …This includes an IED attack on a clothes market in Parachinar on 13 December 2015 which killed at least 25 people and over 70 injured, as highlighted by the Applicant in his oral evidence to the Tribunal. Nonetheless, the Tribunal considers that the weight of the evidence indicates that there has been a sustained improvement in the security situation at Kurram Agency since 2013/14. Despite this recent terrorist attack there is nothing in the independent evidence to indicate that the 2013 truce (between Shia Turis and Sunni Bangash) is not holding and indications are that the security situation has been relatively stable with the exception of incidents like those referred to in the reports by the FATA Research Centre. In this context the Tribunal considers it would be premature to conclude that this attack on 13 December 2015 – the first such attack in Parachinar for almost two and a half years - marks a definite change in the security situation. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, conjecture or surmise has no part to play in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is mere speculation. The Tribunal considers that it would be mere speculation to find on the evidence before it that this terrorist attack means that there has been such a deterioration in the security situation in Parachinar, or in the Kurram Agency generally, that there is a real chance that any individual Shia Muslim member of the Bangash tribe with Turi connections such as the Applicant living in that area will be killed or injured in such a terrorist attack in the reasonably foreseeable future. Having regard to all of the evidence before it concerning the security situation in Parachinar and the Kurram Agency more generally, the Tribunal considers that there is only a remote chance that the Applicant will be killed or injured in such terrorist attacks if he returns to his home area in Parachinar in the reasonably foreseeable future.

   33.  The Tribunal accepts DFAT’s assessment regarding the risk of generalised violence in the FATA and accepts that there is some level of risk to the Applicant in the context of generalised violence.  However it finds on the basis of all the evidence before it that the risk is remote and does not accept that there is a real chance that he would be targeted for harm based on his Shia religion, his Bangash ethnicity, and imputed political opinion (including an association with Turis), or his origins from Parachinar, or any other Convention reasons.”

7. The Tribunal was satisfied that the Applicant would be able to practice his Shia religion on return to Kurram Agency. The Tribunal accepted that there continues to be clashes between militants and security forces and occupational incidents in which civilians have been killed or injured. The Tribunal found, however, that overall the country information indicated that the violence from the Taliban and sectarian violence had decreased in the region, particularly from 2014 onwards.

8. The Tribunal considered the Applicant’s claim that he had to leave Kurram Agency in the past to find work in Rawalpindi and supported his family from there. The Tribunal found that the significant improvement in the security situation since 2014 in Kurram Agency had resulted in fewer restrictions on the local economy.  The Tribunal noted that Kurram Agency was no longer cut off from the rest of Pakistan, and that “whilst it may be difficult for the Applicant to obtain employment on return, there is nothing to suggest that he would not be able to secure any employment at all on return to Kurram Agency as claimed”.  In making that finding, the Tribunal gave weight to DFAT’s advice about the Thall-Parachinar road remaining opening, with improved access by both military and civilian vehicles.

9. The Tribunal also considered the Applicant’s claim in relation to Islamic State (IS) and considered the country information as contained in the DFAT report DFAT Country Information Report, Pakistan, 15 January 2016 at 2.37.  Based on that report, the Tribunal did not accept that there was an active organised IS presence in Kurram Agency, and found that the chance the Applicant would face serious harm from IS on return to Kurram Agency now or in the reasonably foreseeable future was remote. 

10. The Tribunal found the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal also considered the alternative criteria in s.36(2)(aa), being whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed Australia to Pakistan, there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Act. The Tribunal did not accept, on the material before it and given its reasons as contained in its decision record and the country information before it, that there was a real risk the Applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

Consideration

1. Contrary to the submissions of the Applicant’s Counsel, the Court finds the Tribunal’s various conclusions were on the basis of the evidence before it, not focussed on fatalities only, but rather involved a consideration of both deaths and injuries. There are many references throughout the Tribunal decision to injuries sustained within the population.

1. The Tribunal considered each and every of the claims put before it by the Applicant, and did so in some considerable detail.  The Tribunal relied upon its assessment of the country information before it, which was quite extensive, to reach its conclusion that it was not satisfied the Applicant had a well-founded fear of persecution for the reasons claimed, and nor was the Tribunal satisfied there was a real risk the Applicant would suffer significant harm as a necessary and foreseeable consequence of the Applicant being removed from Australia to Pakistan. 

2. As is said many times, the choice of, and weight given, to country information is a matter for the Tribunal as part of its fact-finding function.[1]  Each of the findings made by the Tribunal were open to the Tribunal on the evidence before it.  The decision is a logical and well-reasoned one which essentially turned on the country information before it. The Tribunal preferred certain reports over others and accepted there was a level of violence as described in the extracts above, but found that a level of security had been restored. 

   [1] NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10, 11.

3. The Court finds no jurisdictional error attending the decision of the Tribunal. The application will be dismissed, and costs shall follow that dismissal.

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

Date: 20 December 2017