BFS16 v Minister for Immigration

[2016] FCCA 2575

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFS16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2575

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to give proper weight to the evidence – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A, 424AA, 476.

Applicant: BFS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1284 of 2016

Judgment of: Judge Street

Hearing date: 6 October 2016

Date of Last Submission: 6 October 2016

Delivered at: Sydney

Delivered on: 6 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr D Mclaren

Minter Ellison Lawyers

ORDERS

1. The additional document filed on 29 September 2016 is marked confidential exhibit B and is not to be accessed without an order of the Court.

2. The application is dismissed.

3. 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 1284 of 2016

BFS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction in accordance with s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 April 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant first arrived in Australia on 27 July 2013 as the holder of a subclass 573 (Higher Education Sector) visa. On 24 December 2013 the applicant applied for a subclass 866 (Protection) visa.

The Delegate’s Decision

1. The delegate raised credibility issues in relation to the applicant and the applicant’s willingness to provide false and misleading information to the Department, as impacting on his overall credibility and consequently, the applicant’s claims for protection. The delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and was therefore not satisfied that the applicant’s fear was well-founded.

2. The delegate was not satisfied 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 the applicant will suffer significant harm. The applicant claimed to fear harm from the Taliban because he is from a prominent family of Shia Muslims who are involved in the Tehreek Nafat Fiqh-e-Jaffieriya (“TNFJ”). The applicant claimed to fear harm from the Taliban as a result of his Shia religion, his connection to his family, and his association with, and work for the TNFJ. The applicant also claimed to fear harm from the Pakistani Federal Investigation Agency, as a suspected human trafficker.

The Tribunal’s Decision

1. Following the delegate’s decision on 24 September 2014, the applicant applied for review, lodging an application on 29 September 2014. By letter dated 28 October 2015, the applicant was invited to attend the hearing on 7 January 2016. The applicant appeared on that date to give evidence and put on submissions, together with his representative. At the hearing the applicant was also provided with a further three weeks to provide any further information.

2. Following the hearing, on 15 June 2016, the applicant was sent further information and clear particulars were given as to why the Tribunal considered that information would be relevant to the review and the consequences of it in relation to the applicant’s credit in affirming the decision under review. The applicant was invited to respond to that information. The applicant was also sent on 20 January 2016 updated DFAT reports. On 29 January 2016, further information was provided on behalf of the applicant to the Tribunal, including a further statement from the applicant. On 14 February 2016, further information was provided by the applicant via the applicant’s migration agent to the Tribunal.

3. The Tribunal identified the material provided by the applicant and correspondence referred to in its reasons relevantly at paragraphs 57, 62 and 63 to 66 of the Tribunal’s decision record. The Tribunal identified the relevant law in Appendix 1 to its reasons which was incorporated in the reasons. The Tribunal identified the applicant’s claims and evidence.

4. The Tribunal found the applicant was an unreliable witness who fabricated his claims. On the evidence before it, the Court did not accept that the applicant’s family were a well-known or prominent family who have a long association with the TNFJ, or the Umm-ul Banin Women Force (“the UWF”), or that the applicant or his family have a profile outside their local community, or that the applicant or his family are a wealthy Shia family, or that the applicant or any member of his family has ever been associated or involved with the TNFJ, or UWF, or any other Shia religious or political group, or that the applicant was or has ever been a vocal or activist Shia, as he described himself.

5. The Tribunal did not accept that there was a real chance that the applicant would suffer serious harm, or a real risk that he would suffer significant harm for any of those reasons if he returns to Pakistan now or in the reasonably foreseeable future.

6. The Tribunal did accept that the applicant is a Shia Muslim from a particular location. The Tribunal found it was unable to dismiss as remote, the chance that the applicant would be subjected to serious harm if he were to return to his home in a particular region and practice his religion in accordance with his beliefs as a Shia Muslim. The Tribunal found that there is a small but nonetheless real chance that the applicant would suffer serious harm by the Taliban or other Sunni extremists, for reasons of his religious beliefs, identity and practice as a Shia Muslim. The Tribunal considered state protection and found that the applicant’s fear of persecution in his home area in the reasonably foreseeable future were well-founded.

7. The Tribunal then turned to the issue of relocation. The Tribunal did not accept that there is a real chance or appreciable risk that the applicant would suffer serious harm for reasons of his religious beliefs, practice or identity, or his actual imputed political opinion, his membership of a particular social group, or any other Refugees Convention reason, in the event that he returned to Pakistan in the reasonably foreseeable future and resides in Hyderabad, or some other place in the Sindh or the Punjab.

8. The Tribunal then considered whether it was reasonable for the applicant to relocate. The applicant is a well-educated person. The Tribunal relevantly found that in the applicant’s particular circumstances, it would be reasonable for the applicant to relocate to Hyderabad, or some other city or town in the Sindh, or Punjab and return to Pakistan. The Tribunal found, having considered the applicant’s claims individually and cumulatively, that the applicant did not have a well-founded fear of persecution in Pakistan and did not satisfy the criterion under s.36(2)(a) of the Act.

9. The Tribunal then considered the issue of complementary protection. The Tribunal found there were no substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there would be a real risk that he would suffer significant harm. The Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Act for a Protection visa and affirmed the decision of the delegate.

Proceedings before this Court

1. On 14 July 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit and written submissions. No such documents were filed.

2. The grounds of the application were as follows:-

   1.The Tribunal erred by failing to comply with ss 424A and 424AA of the Act.

   Particulars

   a. In his application and declaration of July 2014, the applicant said that his uncle was shot dead by the Taliban four days after he arrived in Australia, and that his family received death threats from the Taliban after his uncle’s funeral. At the hearing, he said his uncle was killed on 1 August or 2 August. The applicant has never provided decision record of the delegate of the Minister with his application for a review application with the Administrative Appeals Tribunal. In such a situation, the Tribunal has an obligation to put information which the Tribunal consider as inconsistent and consider it as a reason for affirming the decision of the Tribunal under s424 A and 424 AA of the Migration Act 1958. The Tribunal failed to put such information to the applicant under s424 A and 424 AA of the Act.

   2.The Tribunal failed to consider relevant consideration when assessing the applicant’s claim for a protection visa.

   a.   The applicant mentioned that he is a well-educated Shia person and would be harmed due to his profile. The Tribunal in many instances agreed and accepted that the applicant is an intelligent and highly educated man [Para 109, 192]. The Tribunal also accepted that there is a real chance that High-profile professionals would suffer serious harm by the Taliban. [Para 13] However, the Tribunal failed to assess the applicant’s profile, IE well-educated Shia person and therefore, failed to assess the applicant’s fear of harm on the basis as a well-educated Shia person. The Tribunal has accepted that well-educated Shia people face harm. By failing to consider and having over looked this claim while accepting that the highly educated people would face harm and accepting that the applicant is a highly educated man, the Tribunal failed to consider relevant consideration. The Tribunal’s reasons in affirming the decision is self-contradictory.

   b.   The Tribunal failed to consider, assess and give proper weight to the photo evidence the applicant has provided in relation to his case regarding his Shia activities in Australia.

   c.   The Tribunal failed to consider his scars due to his Shia religious practice which would easily identify himself as a Shia activist.

   d.   The Tribunal failed to consider the applicant’s claim as a member of family unit of an active Shia family.

   e.   The Tribunal failed to consider the applicant’s claim that he would be perceived as a Christian Spy due to his studies or stay in a western country.

   3.The Tribunal failed to consider critical aspect or evidence of the applicant when assessing how the applicant would be identified not only as a Shia but as a Shia activist and therefore, internal relocation would not be an option in the applicant’s case. The applicant mentioned that due to the scars he has in his body, the Sunni extremists would identify him as a Shia activity and therefore, he would be identified as a Shia activist and will be harmed even if he relocate to other parts of Pakistan. The Tribunal failed to consider this aspect when assessing relocation option.

   (All errors are in the original)

3. 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, 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 made lawfully and whether the Tribunal’s decision was made fairly. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the Court would set aside the Tribunal’s decision and send it back for further hearing. The Court explained that if not satisfied that the Tribunal’s decision was affected by relevant legal error, the Court would dismiss the applicant’s application.

4. The Court explained it would identify the evidence, then hear submissions from the applicant, 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.

5. From the bar table, the applicant maintained that he had provided independent information to the Tribunal in support of his claims and criticised the finding made by the Tribunal at paragraph 101 of the Tribunal’s decision record. The Tribunal’s reasons at paragraph 101 identify that document fraud is rife and prevalent in Pakistan. The Tribunal made a finding that none of the documents submitted provided an independent source of verification for the particular claims the applicant has made. That adverse finding by the Tribunal was open on the material before the Tribunal and cannot be said to lack and evident and intelligible justification.

6. The applicant also raised the issue of his desire to obtain documents from the UK Home Office. The Tribunal’s reasons identify that during the hearing an opportunity was requested by the applicant for time to obtain those documents. The material put forward before the Tribunal indicated that there would be a response from the UK Home Office within 20 days of 26 January 2016. The Tribunal noted that it did not receive any further information of the applicant, or any explanation about the status of the applicant’s request to the UK Home Office.

7. The Tribunal said that in light of its findings that the applicant was not a reliable witness and the fabricated claims, the Tribunal was not prepared to delay the making of its decision any further.      The Tribunal was not prepared, and did not accept that the information in relation to the applicant subject to the FOI request which was provided to the UK authorities, was incorrect as the applicant claimed. That adverse finding was a finding that was open to the Tribunal and cannot be said to lack an evident and intelligible justification.

8. Nothing said by the applicant from the bar table identified any jurisdictional error. The adverse findings made by the Tribunal in relation to the applicant’s credit were open to the Tribunal. This Court does not have the power to make fresh findings of fact and cannot revisit the merits of the application.

9. In relation to Ground 1, I accept the first respondent’s submissions that the information referred to in the particulars does not enliven any obligation under s.424A of the Act. Further, I accept the submission of the first respondent that the information referred to would fall within the exclusion under s.424A(3)(ba) of the Act. Accordingly, Ground 1 fails to make out any jurisdictional error.

10. In relation to Ground 2, it is apparent that the Tribunal did consider the applicant’s claims in relation to having a wealthy Shia family and made adverse credibility findings in that regard. Those adverse findings were open to the Tribunal. Further, the Tribunal rejected the applicant’s assertion of his profile as a Shia activist. That adverse finding was also open on the material before the Tribunal. There was no relevant consideration in relation to Ground 2(a) that the Tribunal failed to consider.

11. In relation to Ground 2(b), it was for the Tribunal to determine what weight to give to the material produced by the applicant. The Tribunal did consider the applicant’s claims in relation to his Shia activities in Australia, as referred to in paragraph 14(b) of the Tribunal’s reasons. Further, this finding in relation to that material was open to the Tribunal and cannot be said to lack an evident and intelligible justification. Ground 2(b) fails to make out any jurisdictional error.

12. In relation to Ground 2(c), the applicant did not raise any claim to fear harm on the basis that he had scars and that the scars would identify him as a Shia activist. The Tribunal was not required to consider a claim that was not presented before it and did not fairly arise on the material before the Tribunal. Ground 2(c) fails to make out any jurisdictional error.

13. In relation to Ground 2(d), it is apparent the Tribunal did take into account the applicant’s claims in relation to his family and made adverse findings that were open to the Tribunal. Ground 2(d) fails to make out any jurisdictional error.

14. In relation to Ground 2(e), no claim was advanced by the applicant before the Tribunal that he feared harm because he would be perceived to be a Christian spy due to undertaking studies in a Western country. The Tribunal was not required to address a claim that did not arise on the material before the Tribunal and no such claim could be said to fairly arise on the material before the Tribunal. Ground 2(e) fails to make out any jurisdictional error.

15. Ground 3, is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. It is apparent that the Tribunal did consider the applicant’s claims in relation to being a Shia activist and made adverse findings that were open. Ground 3 fails to make out any jurisdictional error.

16. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. The adverse findings in relation to relocation, that it would be reasonable for the applicant to relocate, were open on the material before the Tribunal. On the material before the Court, the Tribunal complied with its statutory obligations and with its obligations of procedural fairness. The application fails to make out any jurisdictional error.

17. Whilst this Court has no power in relation to ministerial intervention, the Court notes that the applicant in the present case is a well-educated person who appears to have had an adverse outcome as a result of a serious misjudgement in his initial application for a visa to this country and an admitted lack of truthfulness by the applicant in that regard. That admission by the applicant was much to his credit. This is an applicant in respect of whom it may be the case that the Minister will consider exercising his powers of ministerial intervention.

18. The application is dismissed.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 October 2016