BFH21v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 182

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BFH21v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 182

File number(s):

CAG 17 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

22 October 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – protection visa – whether Tribunal failed to comply with Ministerial Direction – whether Tribunal failed to take into account relevant considerations – whether Tribunal decision affected by apprehended bias – whether jurisdictional error is made out – no jurisdictional error found – the application is dismissed

Legislation:

Migration Act 1958 (Cth), s 36

Cases cited:

Charisteas v Charisteas [2021] HCA 29

FCS17 v Minister for Home Affairs (2020) 276 FCR 644

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZOAF v Minister for Immigration and Citizenship [2010] FCA 431

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of last submission/s:

19 October 2021

Date of hearing:

19 October 2021

Place:

Parramatta

Counsel for the Applicant:

The applicant appeared in person.

Solicitor for the Respondents:

Ms Hill appeared for the First Respondent

ORDERS

CAG 17 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BFH21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	22 OCTOBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $5900.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Pakistan. The applicant first arrived in Australia on 19 July 2014 as the holder of a TU-537 Higher Education visa.

2. The applicant departed Australia on 18 February 2015 and returned on 26 March 2015. On 2 September 2015, the applicant applied for a Protection visa. On 28 June 2017, a delegate of the Minister (“the delegate”) refused to grant the applicant a Protection visa.

3. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 14 April 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant his Protection visa.

4. The applicant now seeks judicial review of the Tribunal decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision runs to some 20 typed pages and 102 paragraphs. The Tribunal decision is detailed and well set out in terms of the evidence, and the subsequent consideration of it, by reference to the relevant statute law and policy considerations.

6. Given the discussion below, and the limited issues raised in the grounds of judicial review, the Court does not propose to summarise the decision in detail.  The Tribunal noted that the applicant claims that he came to Australia on a Student visa to escape threats that he was receiving from the Tehreek-e-Taliban Pakistan (“the Taliban”), due to his involvement in the local Village Defence Committee and his volunteer work for the non-government organisation, Save the Children.

7. The applicant originally arrived in Australia in 2014, then returned home in February 2015 for a month, before returning in March 2015 and applying for a permanent Protection visa in September 2015.  The applicant also claimed to fear the Taliban due to the death of a cousin in an attack in Rawalpindi and a claimed attack on him personally in February 2015.

8. At paragraph 28 of its decision, the Tribunal noted that the applicant still had one uncle, two male cousins, and one female cousin who continue to live in or work around the applicant’s home village. The applicant’s mother and father are still there.  Some of the applicant’s relatives were involved in the local Village Defence Committee and none of the relatives were said to have any material problems.  The applicant did say however, that his father was subject to “ongoing threats”.

9. At paragraphs 29 through to 33 of its decision, the Tribunal noted the applicant’s evidence in relation to threats made against him.  The Tribunal concluded that it did not accept that it was plausible, that between 2009 and 2013, that the applicant had more than a very low profile with the Taliban.  Otherwise, the Tribunal believed that the applicant and/or his father would have taken material steps to protect themselves, which they did not.

10. At paragraph 34 of its decision, the Tribunal accepted that the applicant’s family were the target of an extortion threat, but following this, they then returned to live in their home village.  The applicant’s family continued to travel, including in the local area, and did not suffer any harm.

11. At paragraph 39 of its decision, the Tribunal accepted that the applicant worked for the “Save the Children” charity in a limited capacity.  The Tribunal accepted that it was plausible that the applicant had been threatened, as claimed, in 2013. The Tribunal noted however, that the applicant’s father had only sent the applicant to Rawalpindi.  Whilst the applicant’s mother and father were also threatened, they continued to live in the home village without any claim to have taken steps to hide or protect themselves.

12. From paragraph 42 of its decision and onwards, the Tribunal discussed the applicant’s claim that he was attacked in what he believes was an unsuccessful abduction attempt in February 2014.  The Tribunal found, at paragraph 45 of its decision, that the claim was a fabrication, in order to explain why the applicant had moved home at that time, from Rawalpindi, to a place where he claimed to fear harm.

13. The Tribunal noted that the applicant returned to Pakistan in mid-February 2015 as he claimed his mother was ill.  It was during this return visit, that the applicant claims that he was attacked by unknown gunmen.  Notwithstanding this, the applicant’s immediate family continued to reside in the area where they had lived for many years.  At paragraph 57 of its decision, the Tribunal was ultimately satisfied that the applicant was not a generally reliable witness.  If the applicant and his father were genuinely at fear of being harmed, the Tribunal was satisfied that they would have taken steps to protect or hide themselves.

14. From paragraph 59 of its decision and onwards, the Tribunal considered the applicant’s claimed political opinion, but was not of the view that this would cause the applicant a real chance of any significant harm if he returned to Pakistan.  The Tribunal was also not satisfied that the applicant would face any chance of harm as a failed asylum seeker.

15. Paragraph 79 of the Tribunal decision onwards deals with the issue of relocation.  The Tribunal found that it was safe for the applicant to return to his home area, however, as it was discussed at the hearing, the Tribunal set out reasons why he could safely return and reasonably relocate within Pakistan, particularly to Islamabad.  In doing so, the Tribunal referred to relevant country information and took particular note of the applicant’s claims, regarding the reasonableness of his relocation and his capacity to access medical care, noting that there was a medical report before it that, the applicant had a diagnosis of post-traumatic stress disorder.

16. Accordingly, the Tribunal determined that the applicant did not meet the criteria for protection under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (“The Act”), and affirmed the delegate’s decision not to grant the applicant a Protection visa.

    GROUNDS OF JUDICIAL REVIEW

17. The grounds of judicial review relied upon, are set out in an Initiating Application filed with the Court on 11 May 2021.

18. They are as follows (reproduced verbatim):

    Ground One

    The second Respondent failed to comply with Migration Direction No 56 in contravention of s 499(2A) of the Migration Act 1958.

    Particulars

    a.   The Second Respondents’ decision was affected by legal error as the Second Respondent failed to consider or take into account and or genuine consideration of the live issue to relocate internally within Pakistan would cause undue hardship, significant harm and or subject the Applicant to further discrimination and further persecution or foreseeable persecution due to his overall profile as consistently claimed.

    b.   The Second Respondent’s decision was although thorough in making its general Country Information findings on Relocation to Islamabad at para 70 to 101 inclusive, unfortunately fell short when it failed to adequately engage with the “reasonableness test” in considering what is reasonable in a sense practical for the applicant to relocate against an overwhelming list of evidence offered both in writing and orally before it.

    c.   The second respondent failed to take into account the PAM 3 Refugee and Humanitarian-Complementary Protection Guidelines and PAM 3 Refugee and Humanitarian-Refugee Law Guidelines when it made a finding on his ability to relocate unreasonably and failed to assess the practical challenges that amount to significant harm to the Applicant.  It suggested that due to his family being safe back in SWAT, his education, his age as well as Pashtun, concluded he is able to relocate safely.  It failed to have regard to evidence put to it that it must consider and have regard to.

    Ground Two

    The Second Respondent failed to take account of relevant considerations by relying on irrelevant material and in so doing, fell into jurisdictional error.

    Ground Three

    The Second Respondent was affected by apprehended bias.

    Particulars

    a.   The Second Respondent repeatedly drew adverse inferences against the applicant on the basis of his ability to access mental health in Australia, accommodation and work that the same can be done if he was to internally relocate to another part of Pakistan.  It failed to put itself in my shoes for trying to do with my mental health issue seeking asylum in Australia and reasons why his mental health treatment was only effective in Australia due to his fears relate to harm suffered within his country.

    b.   The second respondent appeared to have paid mere lip service when assessing internal relocation areas in Pakistan (Islamabad) to which the applicant has lived for a few days, no family support and no way of complying with a 12 month residency requirement as this must be provided to local authorities (Islamabad) to formally relocate, obtain accommodation, work (both private and government jobs). 

    c.   The Second Respondent accepted my work Lashkar, Village defence Committee  and Save the Children organisation but consider my profile to be a low profile that I was a high school student and very young at the time.  The second respondent fell into jurisdictional error by accepting my work but due to my young age perceive that I may not be harmed because of my work at a young age.

    d.   The Second Respondent failed to get my evidence in English where I was able to fully explain my situation in English and refer me to interpreter to get assistance from.  The Second Respondent failed to give me an opportunity to explain my situation and was advised to answer in yes or no and gave me no opportunity to fully explain my situation and thus fell into jurisdictional error.

19. The Court notes that no particulars have been provided in relation to ground two and are somewhat obscure in relation to Grounds 1 and 2.

    THE APPLICANT’S SUBMISSIONS

20. The hearing was conducted via Microsoft Teams due to COVID 19 health restrictions. The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter. The applicant’s level of English was sufficient that he used the interpreter only on limited occasions during the hearing. The Court was satisfied that the applicant was able to properly participate in the hearing before the Court.

21. Prior to the hearing commencing, the Court confirmed that the applicant was in possession of a copy of the relevant Court books and a copy of the first respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper and was able to take notes during the course of the hearing, should he wish to.

22. Notwithstanding Court orders, no written submissions or other material was filed by the applicant in support of his case. The applicant told the Court that he provided all of his evidence to the Tribunal. The applicant was not able to afford to be legally represented and was unable to address the Court on any jurisdictional error.

23. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant stated that he did not.

    THE FIRST RESPONDENT’S SUBMISSIONS

24. The first respondent relied upon the written submissions provided to the Court. Ground one contends that the Tribunal fell into error when it (allegedly) failed to comply with Direction No 56, along with evidence of the hardship and practical difficulties that the applicant would face if he were to relocate internally. 

25. As a preliminary matter, the legal representative for the first respondent submitted that there was no obligation for the Tribunal to consider Direction No. 56, that this Direction was revoked on 25 June 2019, by section 3 of Direction No. 84.

26. To the extent that the ground attempts to complain that the Tribunal failed to take into account relevant considerations, including evidence of the hardship and practical difficulties the applicant would face if he were to relocate internally, the legal representative for the first respondent first noted that the Tribunal’s finding on relocation was secondary (and unrelated) to the primary finding that it was not satisfied that the applicant had a real chance of suffering serious (or significant) harm in his home village.  As such, the Tribunal was not required to consider whether the applicant faced a real chance of harm that related to all areas of Pakistan. The legal representative for the first respondent submitted that any error in relation to that secondary, and unrelated finding, in relation to relocation does not affect the primary finding, which is sufficient to sustain the Tribunal’s decision.

27. In any event, the legal representative for the first respondent submitted that the Tribunal did give express consideration to, and made findings relevant to, the applicant’s complaints. The first respondent’s submission is reproduced below as it appears in their written submissions:

    a)   The Tribunal expressly addresses Direction No. 84 in its decision and states that it took account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' to the extent they were relevant to the decision under consideration (at [8]).

    b)   The Tribunal summarised and made findings on the applicant's written and oral evidence about relocating to Islamabad. This evidence included the likelihood of the applicant facing discrimination in Islamabad, his safety and security, financial capacity (including ability to obtain employment), language barriers, and access to health care and mental health treatment (at [79]-[98]).

    c)   Using its factual findings, the Tribunal considered that the applicant would be reasonably capable of relocating to Islamabad (at [97]).

28. The legal representative for the first respondent submitted that the reasonableness of relocation is not a requirement in the refugee criterion context, although the relevant area must be safe for human habitation and one to which safe access is lawfully possible: (see; FCS17 v Minister for Home Affairs (2020) 276 FCR 644). Reasonableness is a factor in the complimentary protection consideration, however the Tribunal was satisfied that the applicant would reasonably be able to relocate. Accordingly, no error arises.

29. To the extent that the particulars amount to a complaint about the weight the Tribunal gave to the applicants evidence, the legal representative for the first respondent submitted that this is a matter for the Tribunal to consider alone, as part of its fact-finding function: (see; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).

30. Further, there was no other relevant matter put to the Tribunal that was not taken into account.

31. Ground two was a vague assertion of jurisdictional error that was not supported by particulars.  The legal representative for the first respondent submitted that this, of itself, was a sufficient basis for the ground to be dismissed: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

32. Ground three asserts that the Tribunal was biased.  Bias may either be actual or apprehended.  The legal representative for the first respondent submitted that there was no evidence to indicate that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration or being persuaded differently, whatever the evidence or argument may be.  It was further submitted that there was no evidence within the Tribunal’s processes or reasons, considered both individually and cumulatively, that would demonstrate to a fair minded lay person that the Tribunal did not bring a fair and impartial mind to the making of its decision.

33. Contrary to the particulars, the legal representative for the first respondent contends the fact that the Tribunal considered the applicant’s ability to obtain treatment for his mental health in Australia and that, he was also capable of doing so in Pakistan, took into account the applicant’s past relocations in Pakistan when finding that he was capable of relocating internally.  It was submitted that the applicant’s complaint of bias cannot be made out on the evidence currently available.

34. In respect of the complaint that the applicant was unable to fully make his case, as the Tribunal member requested that the applicant use an Interpreter, it is was submitted that there is nothing within the Tribunal’s decision that would indicate that the applicant did not have a real and meaningful opportunity to participate and to give evidence, due to the use of the Interpreter.  The applicant has failed to provide a transcript and translation.  It was submitted that the complaint is without foundation.

35. The legal representative for the first respondent submitted that the Tribunal questioned the applicant at length about his claims for protection and that the applicant had the benefit of a representative and provided written submissions, which the Tribunal took into account.  There is no evidence that the applicant did not have the opportunity to fully make out his case.  To the extent that the ground expresses disagreement with the Tribunal’s factual findings, the legal representative for the first respondent submitted that unless it can be established that the Tribunal’s conclusions were legally unreasonable, irrational or illogical or without any evidentiary foundation, the Court cannot intervene with respect to the Tribunal’s findings of fact.

    CONSIDERATION

36. Ground one is a general complaint that the Tribunal failed to follow relevant policy directives and failed to consider the ‘reasonableness’ of the applicant relocating to Islamabad. As pointed out by the legal representative for the first respondent, the relocation issue was a secondary finding, in that the Tribunal was not satisfied that the applicant had a real risk of serious harm if he returned to his home village.

1. A careful perusal of the Tribunal’s extensive decision does not indicate that the Tribunal failed to take into account any matter that it was required to. The Tribunal expressly made mention of Direction No. 84 and other guidelines at paragraph 8 of its decision.

2. The applicant also takes issue with the reasonableness of the Tribunal’s finding that he could relocate to Islamabad. The Court is satisfied that the Tribunal addressed this issue extensively in its reasons. This included, referring to relevant country information at paragraph 80, and the applicant’s evidence and claims at paragraphs 81 through to 86 of the Tribunal decision. At paragraph 87 of its decision, the Tribunal notes that when pressed, the applicant’s claim not to be safe in Islamabad, appeared to be based on the fact that a judge was assassinated in Islamabad. As pointed out by the Tribunal, the applicant did not have anything but a low profile.

3. The Tribunal considered the applicant’s claims regarding the cost of living, work opportunities and possible discrimination as a Pashtun. The Tribunal also considered the applicant’s claims regarding access to health services in Pakistan. The applicant did not dispute that his family could access private health services. The Tribunal specifically noted country information in relation to the availability of health services. The Tribunal also noted that the applicant had previously relocated by himself to Rawalpindi in Pakistan and then to Australia, all without family support.

4. There is nothing illogical, irrational or legally unreasonable in the Tribunal’s findings. Ground one has no merit.

5. In relation to ground two, it is a bare assertion of jurisdictional error without any particulars. In these circumstances, it is impossible for the first respondent to meaningfully reply to it. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). Ground two has no merit.

6. In relation to ground three, the relevant legal principles applicable to a claim of apprehended bias are well understood: (see; Charisteas v Charisteas [2021] HCA 29 at [11-12]). Actual bias is very rare.

7. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. It will be a rare and exceptional case where bias can be demonstrated solely from the published reasons of the decision. Similarly, the mere fact that the Tribunal makes adverse findings against the applicant does not give rise to an inference of bias or, by itself, suggest that the decision maker approached the task other than with a mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

8. The Court is satisfied that the applicant had a real and meaningful opportunity to put his case before the Tribunal. The applicant was represented, gave evidence and provided written submissions. The issue complained about in relation to the use of an Interpreter is not evidence of bias. Rather, the Tribunal was ensuring that it understood the applicant’s evidence fully and was not misunderstood by translation or a lack of English language skills by the applicant.

9. There is nothing exceptional in the Tribunal undertaking robust and forthright questioning of an applicant. Such questioning does not sustain a finding of apprehended bias: (see; SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]). The fact that the Tribunal then drew adverse inferences is not evidence of bias. It is simply evidence of the Tribunal undertaking its fact finding task by testing relevant evidence, bearing in mind the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

10. The Court accepts the first respondent’s submission that the finding that the applicant would be able to relocate to Islamabad is a secondary finding, in that the Tribunal was satisfied that the applicant was not at real risk of serious harm if returned to Pakistan and he went to live in his home area. That is, relocation was not an essential part of the findings, the applicant was safe in his home area.

11. There is nothing exceptional in the finding that, due to the young age of the applicant, at the time he says he had interaction with the Taliban, he would not be at risk now if returned. This finding is based on relevant country information as well as the applicant’s evidence. This complaint is no more than a disagreement with the factual findings of the Tribunal and is not a matter involving jurisdictional error.

12. If anything, the claim of bias relates to the applicant’s disagreement with the Tribunal’s factual findings and invites merits review. Ground three has no merit.

    CONCLUSION

13. The application is dismissed

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Dated:       22 October 2021