BGW17 v Minister for Immigration
[2018] FCCA 2488
•6 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGW17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2488 |
| Catchwords: MIGRATION – Protection visa – application for review of Administrative Appeals Tribunal decision – s.438 Certificate – no matter of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 438 |
| Cases cited: SZTYV v Minister for Immigration and Border Protection [2018] FCA 1076 Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health [1991] FCA 150; 28 FCR 291 |
| Applicant: | BGW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 605 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 24 May 2018 |
| Date of Last Submission: | 24 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application filed 27 March 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 605 of 2017
| BGW17 |
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 of the Administrative Appeals Tribunal (“the Tribunal”) dated 6 March 2017 which affirmed the decision of a delegate to the Minister not to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant is a Pakistan national from the Haripur district and is of Sunni Muslim faith. The applicant was engaged to an Australian citizen and was granted a prospective partner visa on 11 March 2013 which required him to marry his spouse by 13 December 2013. The relationship subsequently broke down and the applicant applied for a protection visa on 6 December 2013.
The delegate refused to grant the protection visa on 27 November 2015. On 4 January 2016 the applicant applied for review of that decision. The decision was affirmed by the Tribunal on 6 March 2017.
The Tribunal had regard to material before it under s. 438(2) of the Act; information that was not disclosed to the applicant on the basis that it had been provided to the Department in confidence. At [24], the Tribunal had regard to the material in the following manner:
24 …This material was not disclosed to the applicant due to the Tribunal’s assessment that it was of no evidentiary value in the review and because the material was provided in confidence. The material contained untested and unsubstantiated opinion of a third party and for this reason the Tribunal has paid no regard to the information, and has given it no weight in his review.
The Applicant’s claim
The Tribunal summarised the applicant’s claim at [20]:
The applicant claims to fear returning to Pakistan because he will be harmed or killed by the Pakistani Taliban because of volunteer work in the local school and the Polio Vaccination Program in and around his home village, and because he is perceived as having westernised views. He also claims to fear returning to Pakistan because he will be harmed or killed by the Uncle of his former fiancée because he is perceived to have injured the honour of the uncle’s family.
On the topic of the harm faced by the applicant from members of the spouse’s family, the Tribunal concluded at [40]:
…the tribunal has accepted that there was a proposed marriage and that the uncle of the bride was unhappy about that marriage because he wanted her to marry one of his sons to keep control of the family property. This is evidence of a family dispute but falls far short of explaining the seriousness reported by the applicant, said to place him at risk of an ‘honour killing’. Taking into account the public celebration of the engagement and the fact that the applicant lived in the country in close proximity to the uncle up until he left to marry [the spouse] without any threats or actions taken by [the Uncle], the tribunal does not accept that there was ever a risk of serious harm to the applicant from [the Uncle]. The tribunal does not accept that the applicant is currently of any interest to [the Uncle] given the ending of the engagement. The tribunal has not accepted that the applicant has been threatened ‘if he didn’t go ahead with the marriage’ or that a ransom has been demanded in return for his life. The tribunal finds that there is no real chance of serious harm to the applicant from [the Uncle] because of the marriage proposed with [the spouse]. The tribunal similarly finds that there is no real chance of serious harm to the applicant from [the Uncle] because of the breakdown of the marriage or because of a perception held by [the Uncle] that it was the applicant who ended the marriage. The tribunal finds that any risk of harm to the applicant from [the Uncle] if he was to return to Pakistan is remote.
On the topic of the applicant’s volunteer work in the local school and in the Polio Vaccination Program, the Tribunal found the applicant’s oral evidence at hearing ‘to be freely given, reasonable and credible. This evidence demonstrated a more limited involvement in Polio campaigns than he had suggested in his earlier discussion with the delegate’ (at [53]).
On the subject, the Tribunal concluded at [81] that:
…based on his past history of persecution and the ongoing attacks on and threats of violence to polio workers and teachers in Khyber Pakhtunkhwa, the tribunal is satisfied that if he were to undertake volunteer work as a teacher or polio worker in his home village in future, he would face a real chance of serious harm due to the risk of being attacked whilst doing that work.
The Tribunal found at [66] that from June 2012:
…the applicant agreed that he did not receive any threats, nor was he the subject of any further interests by extremists…The tribunal is satisfied that the applicant would find work either at his former employer Chinar College or elsewhere in that field if he was to return to Pakistan.
In considering the risk of harm to the applicant if he returned to Pakistan, the Tribunal concluded at [89]:
…that his particular circumstances (including his past work as a polio worker and teacher) are not such that he would face any particular risk of harm from or being targeted by extremists outside his home area and that even taking into account the generalised violence, it is reasonable for him to locate within Pakistan to avoid the risks to him in his home area. The applicant does not have a profile or other characteristic which would bring him to the attention of extremists in a large urban environment.
Relevantly at [90], the Tribunal held:
…The tribunal finds that there would be no risk of persecution based on his existing profile if the applicant were to relocate to a larger urban area. The applicant has only undertaken voluntary teaching and polio work in Aldo Jabbi where he became involved because he was a returning student in his home town. The tribunal considers it extremely unlikely that the applicant would continue that work if he was to relocate away from his home village, not because of a fear of harm in those areas, but because of a lack of any motivation or sense of commitment expressed by the applicant. Nonetheless, the tribunal also finds that any risk to the applicant of persecution if he was to undertake occasional volunteer teaching or polio campaign work in a larger urban environment would be remote.
In conclusion, the Tribunal held at [91]:
the applicant does not have a well-founded fear of persecution in Pakistan as a consequence of his membership of the particular social groups he raised, because he could safely and reasonably relocate within Pakistan to avoid the persecution he fears.
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under s.36(2)(a) of the Act. Further, the Tribunal was not satisfied the applicant was a person to whom Australia has protection obligations under s.36(2)(aa).
Grounds of Application
An order was made on 27 September 2017 by Registrar Caporale for the filing of further material. Despite that order, the applicant has not filed further material and simply relies on the application filed 27 March 2017.
The application seeks an order that the decision of the Tribunal be quashed.
The application contains the following grounds of application:
I applied for refuge visa (class wa) (subclass 010) on 06/12/2013
The delegate refused my application on 27/11/2015 on the basis that I did not satisfy the requirements of the visa. I further applied for a review application to the Tribunal on 04/01/2016. The Tribunal invited me to attend hearing to present evidence in support of my application. I presented argument and notified the Tribunal that I provided all the document what requires and I explain them how I fear for my life in Pakistan.
However, the Tribunal refused to grant visa so I am not happy with the decision made by the AAT on my application. I believe there is an error therefore I want to appeal against the decision in the Court.
The order is I believed that they done investigation back in Pakistan. Last time the officers couldn’t find my village in Pakistan map and she said I agree with that you have real threat back in home. Between interview the officer reject my all documents and he didn’t even check my documents. When I received my decision I am shocked because I gave them everything but still they not satisfy. I come to you because my documents all is legal and checked then give me a decision.
Unfortunately the applicant’s grounds do not clearly articulate any specific grounds for judicial review, however as the matter progressed it appears that the following issues arise:
a)whether or not it was open to the member to conclude that the papers provided by the applicant were forged;
b)whether the member considered the papers that were provided to the member;
c)whether it was open to the Tribunal to conclude that the applicant could relocate; and
d)whether the Tribunal erred in dealing with information referred to in a certificate of confidentiality.
Issue (a)
The applicant provided the Tribunal with letters from the Head Teacher and the team leader of a health centre in Pakistan. These letters attested to his work as a teacher and polio vaccine program worker: see [49] and [50]. The applicant also produced an identification card which had written on the front the instructions ‘Two drops of polio every child, every time’.
At the hearing, the Tribunal discussed the applicant’s involvement in the polio program and compared this to what he had said to the delegate. The applicant had previously indicated that he was involved in giving the dosage of the vaccine and told the Tribunal that he was scared and confused during the interview with the delegate and wasn’t thinking straight. The applicant was clearly not involved in providing the doses of the vaccine as he was unaware of the precise dose despite the very simple dosage rule that was rendered on the card that he had produced.
Not surprisingly, the Tribunal came to the conclusion that he had ‘a more limited involvement in working on Polio campaigns that he had suggested’: see [53]. Despite concluding that the applicant had embellished his story, the Tribunal nonetheless accepted that the applicant had undertaken some work as a teacher and a volunteer polio campaign worker. It does not appear that this results in the Tribunal having rejected the letters as having been fraudulent or forged.
Having regard to the reasoning process of the Tribunal in the decision, whereby they reach the conclusion that the applicant’s involvement in the polio program was truthful, but simply at a far lesser degree than he had put forward, it is difficult to see that the applicant’s complaint about the Tribunal’s attitude to the document could be sustained.
In short, the Tribunal did not reject the documents, but rather rejected the applicant’s own evidence as to the extensive nature of his involvement in the polio program, finding instead that he had a limited involvement. Nonetheless the Tribunal found he was at risk in his home area. This issue does not amount to a basis for judicial review.
Issue (b)
It is not clear from the applicant’s complaint what documents he says the Tribunal failed to have regard to in determining his case. It seems that this is an extension of his complaints that in substance the Tribunal had not accepted the extent of his involvement in the polio program.
The Tribunal had regard to the documents placed before it and did not find that they were forged. I am not persuaded that this issue amounts to a ground for judicial review.
Issue (c)
Having found that the applicant was at risk of serious harm in his home area (see [81]) the Tribunal went on to consider his ability to relocate. The Tribunal considered whether the applicant could live in a place other than Ghazi. In particular the Tribunal had earlier noted:
65. The reference from Chinar College confirms that he worked there from March 2012 to March 2013. The applicant gave evidence at hearing that the dates given by the college are correct. The tribunal finds that the applicant did commence work at Chinar College from March 2012. The tribunal finds that the evidence suggests that he found this work before the attack on his colleagues but after the other threats made directly to him. The work at Chinar College was full time, paid work. The work on the Polio Campaigns or at the school was occasional voluntary work and is not of a nature which could be considered to give the applicant a profile as a polio worker or a teacher, nor would it be properly considered to be his career.
66. The evidence is that before and after he stopped participating on the polio program, he was working as a computer operator/assistant at Chinar College, which is located south of Ghazi at Mureed Plaza on the Peshawar-Rawalpindi road. At hearing, the applicant agreed that he did not receive any threats, nor was he the subject of any further interest by extremists whilst doing that work after June 2012. The tribunal is satisfied that the applicant would find work either at his former employer Chinar College or elsewhere in that field if he was to return to Pakistan. This finding is based on his past experience and behaviour whilst in Pakistan, and his work history both in Pakistan and in Australia. Based on his own evidence, the tribunal finds that he would not be at risk of being targeted by the Taliban or extremists in doing that work.
…
74. As to his assertion that he would be at risk if he undertook that work again; as noted above, the applicant has a history of working in unrelated paid employment, both in Pakistan and in Australia. In the period of approximately 9 months prior to coming to Australia he had not been undertaking polio campaign or teaching work, but was working in full time employment. He is an educated young man with experience and a work history both in Pakistan and in Australia and could readily work in areas of employment unrelated to the volunteer work he did in the past. He gave evidence that he has been working as a carpenter in Australia and very much enjoys that work. The tribunal finds that the applicant would not be likely to undertake polio campaign work or volunteer teaching work in his home village if he was to return to Pakistan in the foreseeable future. The applicant did suggest that he feels polio health campaign work is important work. However, based on his decision to stop that work prior to departing the country, and the fact that the role was an occasional one and not related to his career or profession, the tribunal finds that he would be extremely unlikely to undertake that work on his return.
Under the heading ‘Relocation’ the Tribunal commenced by noting:
85. The tribunal considered whether the risk of harm to the applicant persists throughout Pakistan or whether he could reasonably relocate to avoid the risk of harm. It was put to him at hearing that he had lived in large urban areas independently whilst he was studying, including Abbottabad and Lahore, and that he did not face harm whilst he did so. The applicant agreed with that proposition but argued that there is a generally unsafe security situation throughout Pakistan which means that his life could be taken at any moment, no matter where he was. He was clearly referring to a pervading general security situation which is unstable and not a fear of being specifically targeted or of persecution in those larger urban areas. The applicant has also lived independently in Australia since 2013 and has extensive experience of living outside his rural home area and being self-sufficient.
In [86] the Tribunal noted the country information which provided evidence of large urban areas of mixed ethnic and religious communities with opportunities for employment and access to services. The Tribunal went on to consider the applicant’s specific circumstances saying:
87. The tribunal finds that the applicant does not have a profile as a polio worker, teacher or as a person who supports westernised views because of his voluntary and occasional work prior to 2013 in Aldo Jabbi, or because of his time in Australia. The tribunal has found however he does face a real chance of persecution if he was to return to his home and undertake teaching and polio campaign work in his home area in the future. The tribunal is satisfied (as expressed by the applicant) that his reason for leaving the country was to marry and establish a new life in the generally safer security environment in Australia - not to flee persecution. The tribunal notes the length of time since he last worked in his school or polio program, and his other work experience prior to leaving Pakistan. He has been outside the country for nearly 4 years, and no attempts to find or threaten him because of his historical involvement in teaching or polio campaigns have been made in that time. The applicant conceded at hearing that he was unlikely to be specifically targeted in large urban areas and could potentially live there, without risk of persecution. His submission was that a general risk of harm persists against citizens of Pakistan throughout the country, including in large urban areas and 'there is no safety in Pakistan'.
88. The tribunal considered the security situation in Pakistan generally. It is acknowledged that the security situation in Pakistan is unsettled and extremist activity varies across the country. As noted above, the risk of terrorist attack could not be classified as remote throughout Pakistan.
89. Nonetheless, the tribunal is satisfied that, were the applicant to relocate to any of the larger urban areas including Lahore, Abbottabad or Islamabad, the general country information reflects that conditions of living would be such that a relatively normal life could be led in the context of the country's overall security situation. The tribunal is satisfied that his particular circumstances (including his past work as a polio worker and teacher) are not such that he would face any particular risk of harm from or being targeted by extremists outside his home area and that even taking into account the generalised violence, it is reasonable for him to locate within Pakistan to avoid the risks to him in his home area. The applicant does not have a profile or other characteristic which would bring him to the attention of extremists in a large urban environment. There is no reason to suspect that he is at risk of being targeted by the Taliban, other extremist groups or any other agent (state or otherwise) in Pakistan outside his home area.
90. Given the applicant's background, his work experience, his educational qualifications and his practical experience of living away from his home town, the tribunal considers that the applicant could reasonably relocate to a larger urban area such as Abbottabad or Lahore, where he has lived in the past, and avoid the risk of persecution he faces in Aldo Jabbi and its' environs. The tribunal finds that he would be of no ongoing interest to extremists who have not sought him over the past nearly four years if he were to reside in a larger urban area such as Lahore or Abbottabad. Further, the security situation is less volatile in the larger urban areas and there is a greater level of anonymity as well as a higher level of state protection. The tribunal finds that there would be no risk of persecution based on his existing profile if the applicant were to relocate to a larger urban area. The applicant has only undertaken voluntary teaching and polio work in Aldo Jabbi where he became involved because he was a returning student in his home town. The tribunal considers it extremely unlikely that the applicant would continue that work if he was to relocate away from his home village, not because of a fear of harm in those areas, but because of a lack of any motivation or sense of commitment expressed by the applicant. Nonetheless, the tribunal also finds that any risk to the applicant of persecution if he was to undertake occasional volunteer teaching or polio campaign work in a larger urban environment would be remote. The applicant has family in Lahore, though he reported that his grandparents had now passed on. His uncle and uncle's family still reside there. The applicant would not be without any family support if he were to relocate to Lahore. The tribunal finds that the applicant could reasonably and safely relocate within Pakistan.
It does not appear that the Tribunal has erred in its approach to the question of relocation. The findings that the Tribunal have made were open to the Tribunal on the evidence before it. I am not persuaded that this issue is a basis for a finding of jurisdictional error.
Issue (d)
At [24] of the decision, the Tribunal member identifies that the file contains material provided by a third-party that was subject to a certificate under s.438(1)(b) of the Act. The Tribunal said, in its reasons:
The file also contained material provided by a third party which was subject to a certificate under section 438(1)(b) of the Act. This material was not disclosed to the applicant due to the tribunal's assessment that it was of no evidentiary value in the review and because the material was provided in confidence. The material contained untested and unsubstantiated opinion of a third party and for this reason the tribunal has paid no regard to the information, and has given it no weight in this review.
The certificate appears at p.107 of the Court Book, the operative part which states:
· the information was provided in confidence by another person or organisation;
· the information is from a third party whose identity cannot be disclosed to the applicant; and
· documents which, if released, would otherwise affect the privacy of another person
The certificate goes on to note that the Tribunal’s use and disclosure of the information would be subject to sub-ss.(3) and (4) of s.438. Section 438 is in the following terms:
438. Tribunal's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
…
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The first issue that must be considered is whether or not the certificate properly covers the documents to which it refers. For this purpose I considered the contents of the documents without disclosing them to the applicant: see generally SZTYV v Minister for Immigration and Border Protection [2018] FCA 1076.
It appears from the definition of ‘non-disclosable information’ that the words ‘in confidence’ were intended to mean the situation whereby the Minister could be sued by a third-party if the information was disclosed, on the basis of a cause of action for ‘breach of confidence’.
The contents of the document are clearly not within the public knowledge or the public domain. Whilst the nature of the information is such that it may not be totally secret, it is information that is likely to be known by sufficiently few people that it is capable of being confidential information.
In Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health [1991] FCA 150; 28 FCR 291 at [46], the Full Court said:
…the circumstances in which confidential information is supplied may vary widely. To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider had any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information – and, no doubt, many other matters.
In this case the confider of the information did not expressly state that it was given in confidence. However given the nature of the information and the identity and contact details provided by the confider, one could not help but conclude that the confider intended that the letter as a whole be held in confidence. I am not persuaded that forwarding of the information to the Department (without specifically stating that it was forwarded on a confidential basis) means that the author should be taken as having put the information into the public domain. Whilst the information is not commercial in nature, it is certainly not trivial information and would have great significance for the person concerned. On the material before me I am persuaded that it was open to the Tribunal to conclude that the document was provided in confidence and therefore to consider what steps should be taken under the relevant provisions.
Unfortunately, it appears that the Tribunal failed to discuss the certificate with the applicant nor provide the applicant an opportunity to make submissions challenging the certificate. In this regard the Tribunal has made an error of law.
I am satisfied that if the substance of the allegations in the document were provided to the applicant, it is likely to disclose the identity of the third-party who provided the information. I am also satisfied that the contents of the documents could not have provided the applicant any assistance in his case before the Tribunal.
The position taken by the Tribunal, that because the material was untested and unsubstantiated the Tribunal should have no regard to the information, was clearly appropriate. The factual claims made in the documents, even if accepted, largely are of no relevance to the issues that the Tribunal had to determine. However the document does make a bare allegation that the applicant may be seeking a protection visa for his own personal and economic benefits, rather than for protection from a genuine fear or harm. To this extent the material was prejudicial to the applicant, although without any particularised facts supporting this adverse opinion of the applicant’s motives in seeking the visa.
Having received the information protected by the certificate, the Tribunal would have had to consider whether or not to disclose all or part of the contents of the document to the applicant. As the only relevant part of the document was the bare allegation that the applicant was seeking the visa for purposes that were not genuine, it is difficult to see that this was ‘information’ that could be particularised and put to the applicant, in the sense of allegations of fact. It is an allegation of a subjective belief without any factual circumstances from which one could assess whether or not such a subjective belief was held. The situation would be different if the applicant was alleged to have made statements orally or in writing, from which one can draw the inference that he was not genuine in his protection visa application.
Ultimately, having regard to the nature of the information, the Tribunal’s undoubtedly correct assessment of the relevance of the information and the use that could be made of it (as set out in [24]), I am not persuaded that there is any practical injustice in this particular case. Nor am I persuaded that disclosing the information ‘could’ have made a difference to the outcome in the Tribunal.
I therefore dismiss the application for judicial review.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 6 September 2018
1