BIT15 v Minister for Immigration
[2016] FCCA 1995
•5 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIT15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1995 |
| Catchwords: PRACTICE AND PROCEDURE – Leave to further amend application. |
| Legislation: Constitution, s.75(v) Migration Act 1958 (Cth), ss.5(1), [36(2),] 36(2)(aa), 36(2A), 65, 414, 476 |
| Cases cited: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 |
| Applicant: | BIT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 317 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 May 2016 |
| Date of Last Submission: | 19 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 5 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr FA Robertson |
| Solicitors for the Applicant: | AUM Legal |
Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 18 June 2015.
A writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the applicant’s application for review dated 17 February 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 317 of 2015
| BIT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
On 13 July 2015 the applicant lodged an application for judicial review (“Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision made on 18 June 2015 of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 182-192.
Registrar’s and Court’s orders
On 30 September 2015 a Registrar of this Court made orders, including the following orders:
…
3 The applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 6 November 2015.
4 The applicant file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 6 November 2015.
…
8 The matter be listed for final hearing at 2.15pm on 19 May 2016 before a Judge.
…
(“Registrar’s Orders”)
On 15 April 2016 the Court made the following orders:
1. The time in order 6 of the Orders made 30 September 2015 for the Applicant to serve written legal submissions be extended to 14 April 2016.
2. The time in order 7 for the Respondent to serve written legal submissions be extended to 5 May 2016.
(“Court’s Orders”).
Amended Application
An amended Application was filed on 6 November 2015 (“Amended Application”).
Proposed second Amended Application
At hearing the applicant sought leave to proceed upon a proposed second Amended Application to include a single ground of review as follows:
The Tribunal fell into jurisdictional error when it failed to consider whether the applicant was:
(a) a member of a particular social group consisting of “failed asylum seekers”, “returnees from the West” or an Afghani who lived illegally in Pakistan for a prolonged period (13 years);
(b) at risk of harm due to being a failed asylum seeker, returnee from the West and/or an Afghani who lived illegally in Pakistan for a prolonged period (13 years) when considering whether the applicant was a person who was subject to the Complimentary (sic) Protection provisions.
Leave to file the proposed second Amended Application, and to amend the Amended Application in terms of the proposed second Amended Application, was granted by the Court at hearing on 19 May 2016 (“Second Amended Application”). The Court did so because:
a)the Minister neither consented to nor opposed the proposed amendment: First Respondent’s Written Submissions (“Minister’s Written Submissions”) at [12];
b)the Minister’s written submissions filed 14 days prior to the hearing proceeded on the assumption that leave to amend would be granted: Minister’s Written Submissions at [13];
c)the Minister’s Written Submissions addressed the single ground of review contained in the then proposed second Amended Application; and
d)the proposed amendment reduced the grounds of review to the single ground of review set out, and therefore reduced the extent of the controversy the Court was required to determine, consistent with those legislative objects requiring the Court to operate informally and use streamlined procedures and to avoid undue expense and technicality: Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), s.3 and Federal Circuit Court Rules (Cth), r.1.03.
Background to the Second Amended Application to the time of the Tribunal Decision
The applicant is a citizen of Afghanistan from the Pashtun region who arrived in Australia as an illegal maritime arrival on 22 July 2012: CB 110.
The applicant applied for the Protection Visa on 14 February 2013: CB 23-98.
In a statutory declaration declared 14 February 2013 the applicant claimed:
a)that he was born in Afghanistan on 31 December 1985 and relocated to Parachinar in Pakistan with his family in 1988 and from 2005 worked as a courier delivering groceries to customers, mainly in Parachinar: CB 54 at [6] and [9];
b)that the Taliban had warned delivery trucks not to forward goods to the Shia community in Parachinar in retaliation for the Shias not allowing the Taliban to enter Afghanistan via Shia lands in Parachinar: CB 54 at [11];
c)that despite the warning from the Taliban, on around 19 June 2008 the applicant was delivering goods from Peshawar (in Pakistan) to the Shias in Parachinar when the Taliban opened fire at a fleet of about 24 trucks in Pirquyyam: CB 55 at [12];
d)the applicant managed to escape harm and went into hiding before going to Peshawar: CB 55 at [12]; and
e)the applicant was told that the Taliban was looking for him in Afghanistan and so he remained in Peshawar until he heard that a person was killed there by the Taliban so he made arrangements to come to Australia: CB 55 at [13]-[14].
The applicant attended an interview with the Delegate on 27 May 2013: CB 91.
The Delegate’s Decision on 30 January 2014 was to refuse to grant the applicant the Protection Visa: CB 108-121.
On 17 February 2014, the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 123-128.
The applicant made pre-hearing written submissions dated 11 May 2015 to the Tribunal: CB 140-160 (“Applicant’s May 2015 Submissions”).
The applicant appeared before the Tribunal on 13 May 2015: CB 161.
On 18 June 2015, the applicant’s representative provided further written submissions to the Tribunal (in accordance with a direction made at the Tribunal hearing), an earlier attempt on 28 May 2015 to provide the further written submissions to the Tribunal having been unsuccessful: CB 165-178 (“Applicant’s June 2015 Submissions”).
The Applicant’s May 2015 Submissions and the Applicant’s June 2015 Submissions are both set out in more detail below.
Applicant’s May 2015 Submissions
The Applicant’s May 2015 Submissions run to some 21 pages, and show (unlike many such submissions made to the Tribunal) a reasonable degree of care and attention to the detail of the applicant’s individual case, and the circumstances in Afghanistan and Pakistan as they relate to the applicant’s particular circumstances. Notably, the Applicant’s May 2015 Submissions provide as follows:
a)CB 140 at [2.4] and [2.5]:
2.4 The Claimant is in Australia seeking protection against persecution he and his family have suffered, and will suffer, in their country of origin if he is forced to return to Afghanistan and Claimant is unable, or unwilling due to his fear of persecution, to avail himself of the protection of his country.
2.5 It is submitted that the evidence of the Claimant has demonstrated that the Claimant has a well-founded fear of persecution and that the persecution feared arises out of reasons set out in the Convention, namely the Claimants' religious beliefs as a person who has been identified and targeted by the Taliban because of his involvement in delivering food and other items to the Shi'a community in Parachinar, who the Taliban believe are "non-believers" or infidels, and his imputed political opinion as a person opposed to the political and religious ideology of the Pakistani Taleban.
The Claimant will also be persecuted in Afghanistan by the Taliban because of his activities in Pakistan described above.
b)CB 142 at [3.3]:
3.3 The evidence of the Claimant clearly establishes that he has suffered persecution, within the meaning of the law, for the reason of his religious beliefs and his imputed political opinion and this establishes him as a person who falls within the definition of a refugee as defined in the UN Convention.
c)that the applicant originates from Paktia Province, bordering on both Ghazni and Zabul Province, both of which are Taliban strongholds, and that Paktia has a strong Taliban presence, evidenced by the recent abduction of mine removal workers, who were only released after intervention by Afghan security forces in April 2015, and that it would not be safe for the applicant to be returned to Paktia Province or anywhere in Afghanistan: CB 147 at [3.5.14];
d)CB 147 at [4.1] and [4.1.2]:
4.1 The situation in Pakistan is particularly difficult for the Claimant due to the imputed political opinion attributed to him as a person opposed to the religious and political ideology of the Pakistani Taliban.
4.1.2 It will be equally difficult and dangerous for the Claimant to live in Afghanistan for the same reasons set out in paragraph 4.1 above.
There are close links between the Pakistani Taliban and the Taliban in Afghanistan. They are both largely ethnic Pashtun-based and there are often close, cross border family and cultural links between the various Taliban groups in Pakistan and Afghanistan.
e)reference is made to both the Pakistani federally administered territorial areas in Pakistan and Afghanistan being subject to domination and effective governance by the Taliban with a harsh interpretation of Islamic doctrine, including forcing men to wear long beards and imposing strict social codes on civilians: CB 148 at [4.3] and CB 149-150 at [4.6];
f)CB 150 at [4.9] and [4.10]:
4.9 It should be noted that the Claimant would be quickly and easily identified should he return to the village where his parents and grandparents lived.
4.10 The Claimant produced evidence which indicates that the Taliban have identified him as a person who assisted with the supply of food and other goods to the Shi'a communities in defiance of the orders from the Taliban.
The Taliban have identified his family and located his home village in Afghanistan as evidenced by the enquiries about the Claimants' whereabouts made to the Claimants uncle.
g)relied upon country information from the Australian Government’s Department of Foreign Affairs and Trade (“DFAT”), and in particular a travel advice issued on 3 June 2013, which indicated that serious terrorist incidents including suicide bombings and other bomb attacks occur regularly in Afghanistan, including Kabul, and that there had been a number of attacks on hotels and housing compounds used by Westerners, embassies, government buildings and NATO bases, facilities of international humanitarian groups, and an increase in insider attacks and incidents, and that possible terrorist targets also included commercial and public areas such as restaurants, clubs, markets, shops, hotels and guesthouses, places of worship, landmarks and airports: CB 152 at [4.11.4];
h)in relation to the contention that only people of a particular profile were being targeted by the Taliban it was submitted at CB 152 at [4.11.5] and [4.11.6] as follows:
4.11.5. The contention that it is only people of a particular “profile” who are being targeted and persecuted or killed is not borne out by the UKBA report which makes it clear that “ordinary” people are being persecuted and killed.
4.11.6 It may be true that people working with foreign troops or organisations, especially as interpreters, people working in the Afghan government or people with a local political profile may be at higher risk of being killed but it is submitted that the majority of people being killed are ordinary people of no particular “high profile”.
i)at CB 154 at [6.3] it was submitted that:
The Claimant is unable to rely on protection from the authorities in Afghanistan against the persecution because the persecution is perpetrated by the Taliban, an armed group at war with the government of Afghanistan and, it is submitted, the government of Afghanistan is both unable to prevent the conduct or is unwilling to prevent it.
j)in relation to complementary protection, various provisions of international covenants relevant to the question of complementary protection were set out, as was s.36(2) and (2A) of the Migration Act. Thereafter, the totality of the applicant’s complementary protection submission was as follows at CB 159 at [7.8] and [7.9]:
7.8 The Claimant is at risk of being arbitrarily deprived of his life in contravention of s36 (2A) (a) above by the Taliban because of his imputed political opinion and his imputed religious beliefs.
7.9 It is submitted that the evidence establishes that there is a real chance that, as a necessary and foreseeable consequence of being forced to return to Afghanistan, the Claimant will suffer significant harm as defined in the Act.
Applicant’s June 2015 Submissions
As with the Applicant’s May 2015 Submissions the Applicant’s June 2015 Submissions, made after the Tribunal hearing, are detailed and focused upon the circumstances of the applicant. They provide that:
a)at CB 166 at [2.1] to [2.4] as follows:
2.1 The situation in Afghanistan would be particularly difficult for the Claimant due to his imputed political beliefs as a person who defied a Taliban directive not to assist the Shi'a “non-believers” under siege in the Parachinar area of Pakistan.
It is further submitted that the Taliban would view the Claimant as someone who had gone against the religious principles or tenets of Sunni Islam by assisting the Shi'a people.
The Claimant is of Pashtun ethnicity and follows Sunni Islam.
2.2 It is submitted that, wherever the Claimant went in Afghanistan, if he is forced to return to Afghanistan, he would be at risk of being killed and that makes internal relocation an unrealistic option for Claimant.
2.3 It should be noted that the Taleban have an extensive and sophisticated network in Afghanistan. People wanted by the Taleban now have their pictures circulated on mobile phones and social media and this means that they can easily be identified wherever they go in Afghanistan.
2.4 It should be noted that the Claimant would be quickly and easily identified should he return to the village where his parents and grandparents lived.
The Claimant was born in Gulghandy, Aryub Zazai in Paktia Province, Afghanistan and has spent most of his life as a refugee in Pakistan.
The only relative the Claimant has in his village of origin is an elderly Uncle. His parents and brothers moved back to the village but were forced to return to Pakistan.
b)repeats the submission set out at [18(i)] above at CB 170 at [3.3];
c)in relation to complementary protection says at CB 174 at [4.12.2] as follows:
4.12.2 It is further submitted that factors which may be outside the ambit of Convention-related grounds should properly be taken into account in assessing whether it is reasonable for a person to relocate to or remain in a specified place within the country of origin.
The Courts have held that "generalised violence" while not a Convention ground or a Complimentary protection ground, is a relevant factor in assessing whether or not it is reasonable for a person to relocate or remain in a specified place.
See MZZKM v MIBP [2014] FCCA 24 at [27] and SZHZZ v MIAC (2008) 101ALD 138.
It is submitted that, even if the Tribunal does not accept that the Claimant will be targeted for persecution or will suffer significant harm at the hands of the Taliban in Kabul, a situation of generalised violence” exists in Kabul which renders it unreasonable to expect the Claimant to relocate to Kabul.
d)at CB 176 at [5.3] as follows:
5.3 The issue of whether the Claimant lives in Pakistan or Afghanistan has been covered above. He will be safe in neither country because the Taliban are linked by ethnic, cultural, religious and political ties and will kill him wherever they find him.
The Tribunal Decision
The Tribunal Decision commences by setting out the background: CB 183 at [2]-[5], and the relevant law: CB 183-184 at [6]-[9]. In particular, the Tribunal noted the complementary protection provisions in s.36(2)(aa) of the Migration Act, and that “Significant harm” was exhaustively defined in ss.36(2A) and 5(1) of the Migration Act: CB 184 at [8].
The Tribunal then set out its understanding of the claims made by the applicant and the evidence in support of those claims as follows: CB 184-187 at [10]-[33]:
a)the applicant and his family had left their home village in Paktia Province in Afghanistan for Parachinar in Pakistan in 1988 because of insecurity, and they do not have rights of residence in Pakistan: CB 184 at [11];
b)the applicant did not attend school and has worked only as an assistant to a truck driver based in Parachinar transporting goods from Peshawar to Parachinar: CB 184 at [12];
c)the applicant returned to Afghanistan to obtain his Taskera (an identification document somewhat like a birth certificate) in Paktia Province in April 2009 where he spent two days, but did not return to his village, this being the only time he has returned to Afghanistan since leaving in 1988: CB 184 at [13];
d)the applicant’s family had returned to Paktia sometime prior to June 2008 but left again after the applicant arrived in Australia: CB 184-185 at [13]-[14];
e)the only remaining relative that the applicant has in his home village is an uncle: CB 184-185 at [14];
f)the applicant’s account of an attack on a truck convoy on its way to Parachinar in June 2008, which is a documented attack by the Taliban, but from which the applicant says that he escaped and eventually returned not to Parachinar, but rather Peshawar, and that he remained in Peshawar for almost four years after the Taliban attack, but says that he was virtually housebound: CB 185 at [15]-[18]; and
g)that the applicant returned to Paktia to obtain his taskera, and whilst he thought about going back to his village, when he called his uncle his uncle told him not to come back because the local Taliban had been asking about the applicant, and had told the applicant’s uncle that the applicant would be arrested if the local Taliban found him: CB 185 at [19].
The Tribunal indicated to the applicant that given the low level of his claimed involvement it seemed difficult to believe that the Taliban would continue to be interested in tracking him down, especially seven years after the attack, and that it was difficult to believe that they would be actively looking for him in his village in Paktia Province, where he had not been since 1988, particularly when there was no indication that they were looking for him in Peshawar: CB 186 at [24]-[25], to which the applicant responded as follows:
a)that in Peshawar he hardly went out, and it was more difficult to find someone in a big city, whereas his home village was a small village, and that “if a person has done something wrong in the opinion of the Taliban they will always come after him, no matter how much time passes”: CB 186 at [26];
b)that when he fled the Taliban attack on the convoy he left behind identity documents which have enabled him to be identified, and that the Taliban have “an extensive and sophisticated network …” and “Photographs of wanted people are circulated on mobile phones and social media so they can be easily identified”: CB 187 at [30]; and
c)the applicant submitted that in Pashtun culture blood feuds and the desire for revenge last for many years: CB 187 at [33].
The Tribunal accepted that the applicant:
a)was a national of Afghanistan: CB 188 at [34]; and
b)had no formal education and may be functionally illiterate: CB 188 at [36],
but ultimately formed the opinion that the applicant's evidence was not credible: CB 188 at [36].
The Tribunal did not accept that the applicant would be targeted for political and religious views imputed to him because he worked on a truck taking supplies to Shia Muslims in Parachinar, or that there is a real chance that he faces persecution or significant harm for this reason: CB 188 at [37].
Given its concerns in relation to the applicant's evidence the Tribunal did not accept that the applicant:
a)was identified by the Taliban as a worker on a truck driving supplies to Parachinar following an attack by them on the convoy of trucks; or
b)that he escaped in the circumstances claimed or that he would be of any adverse interest to the Taliban in his village should he return there: CB 190 at [43].
The Tribunal was not satisfied that the applicant:
a)had a well-founded fear of persecution at the hands of the Taliban; or
b)faced a real risk of significant harm from the Taliban: CB 190 at [43].
The Tribunal went on at to consider whether the applicant would be at risk of harm in his village for any other reason at CB 191 at [44]-[45]:
44. In his submission of 11 May 2015 the applicant's representative submitted that Paktia Province has a strong Taliban presence, evidenced by the abduction of a number of mine removal workers in April 2015. It was submitted that it would not be safe for the applicant to be returned there, or anywhere in Afghanistan.
45. While independent information supports the applicant's representative's submission that Paktia Province is insecure and dangerous, the available information indicates that, as in other parts of Afghanistan, the primary targets of the Taliban and other insurgent groups are individuals and institutions associated with the Afghan government and security forces, and the international forces. Moreover, the security situation there seems uncertain: while an International Crisis Group (ICG) report in May 2014 noted an improving security situation in 2012-13 and grounds for optimism following the withdrawal of international forces, more recent news reports indicate at least the possibility of increasing insurgent attacks there. Even these reports, however, appear to consistently indicate that those targeted are people associated with government or security institutions. Overall, I find that there is no credible evidence before me to suggest that, as a Pashtun Sunni or for any other reason he has suggested or which arises from the credible evidence, the applicant would be targeted for a Convention reason for systematic and discriminatory harm that would constitute persecution should he return to his village in Paktia. Moreover, in my view, any risk that he might face in his home area due to the presence of insurgents and generalised violence would be one faced by the population generally arising from general insecurity - for example, where civilians are killed in attacks directed at military personnel - and not one faced by the applicant personally. In these circumstances, the risk is not a real risk for the purposes of the complementary protection criterion. For these reasons, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Afghanistan, there is a real risk that he will suffer significant harm.
In summary therefore the Tribunal found that the applicant could return to his village in Afghanistan because:
a)reports consistently indicated that those targeted by the Taliban and other insurgents were people associated with government or security institutions and there was no credible evidence that the applicant would be targeted for a Convention reason should he return to his village;
b)any risk that the applicant may face due to the presence of the Taliban or insurgents was one of generalised violence and was one faced by the population generally and not the applicant personally;
c)the risk is not a real risk for the purposes of the complementary protection criterion; and
d)it was not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, that there is a real risk that he will suffer significant harm.
The Tribunal affirmed the Delegate’s Decision: CB 192 at [49].
The sole ground of review in the Second Amended Application
The Second Amended Application pleads a single ground of review, namely that the Tribunal failed to consider whether the applicant was a member of a particular social group of:
a)failed asylum seekers;
b)returnees from the West; or
c)Afghanis who lived illegally in Pakistan for a prolonged period (13 years),
and that the Tribunal failed to consider whether the applicant would face a risk of significant harm as a result of such memberships when considering the complementary protection criteria.
The applicant’s submissions
The applicant submits that:
a)the duty imposed on the Tribunal is a duty to review the Delegate’s Decision: Migration Act, s.414; Minister for Immigration and Citizenship v SZIAI[2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The requirement is to consider any claim made by an applicant: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No. 2)”) at [58] per Black CJ, French and Selway JJ, and if the Tribunal makes a decision without considering all of the claims, it fails to complete the exercise of the jurisdiction conferred upon it: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J, and falls into jurisdictional error: NABE (No. 2). Where the Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95] (“Dranichnikov”); NABE (No. 2) at [55] per Black CJ, French and Selway JJ;
b)the obligation also arises if a claim clearly arises from the material before the Tribunal: NABE (No. 2) at [60] per Black CJ, French and Selway JJ. The Federal Court has been at pains to point out that when dealing with these types of claims, the application is not to be treated as an exercise in 19th century pleading: SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411 at [17] per Selway J (“SGBB”), referring to Dranichnikov. In that regard:
The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.
Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] per Whitlam, Tamberlin and Sundberg JJ;
c)the question will ultimately turn on whether the case put to the Tribunal has sufficiently raised the relevant issue such that the Tribunal should have dealt with it: SGBB at [17] per Selway J; and
d)the claim of there being a real risk that the applicant will suffer significant harm after being returned to Afghanistan as a failed asylum seeker from the West and as a person who has illegally resided in Pakistan for 13 years prior to his departure arose, clearly, for the following cumulative reasons:
i)first, the applicant claimed to have not lived in Afghanistan for since 1988 or 1989 but rather have lived in Pakistan, illegally, for 13 years: CB 15, 54 and 114;
ii)second, the applicant claimed to have acquired a passport fraudulently: CB 19;
iii)third, the applicant claimed that if he is returned to Afghanistan that he will be targeted: CB 55;
iv)fourth, that as part of the Protection Visa application process, the applicant’s information was shared to the government of “ALL COUNTRIES” third parties: CB 81-82;
v)fifth, the Delegate was uncertain about which country the applicant was a citizen of, either Pakistan or Afghanistan: CB 109, thereby creating uncertainty about whether the applicant would be returned legally, or illegally, to a receiving country;
vi)sixth, the applicant claimed in his statutory declaration: CB 113, that he could not return to Afghanistan, and that the authorities in Afghanistan would not protect him;
vii)seventh, the Delegate found that: “I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will be subject to significant harm”, thereby generating an obligation on the Tribunal to review whether removal from Australia to a receiving country, after a negative outcome before the Tribunal (i.e. as a failed asylum seeker) would generate a real risk of significant harm;
viii)eighth, the Applicant’s May 2015 Submissions claimed that the applicant will be persecuted in Afghanistan by the Taliban because of his activities in Pakistan: CB 140;
ix)ninth, the Applicant’s May 2015 Submissions claimed that it would be difficult and dangerous for the applicant to live in Afghanistan due to imputed political and religious ideologies, and it is not a stretch to also consider whether as a failed asylum seeker from the West similar adverse profiles may be imputed which might be caught by the complementary protection provisions: CB 140;
x)tenth, country information as referred to in the Applicant’s May 2015 Submissions suggested that the Taliban impose a strict social code, requiring men to have long beards, and the applicant does not have a long beard: CB 148-149;
xi)eleventh, the Applicant’s May 2015 Submissions challenged the notion that it is safe for Afghan refugees that have either voluntarily gone back to Afghanistan or been deported back to Afghanistan: CB 151, and then goes on to make a claim about the adverse consequences suffered by these ‘returned refugees’: CB 151, including inability to find housing, the ‘ethnic segregation’ and that ‘ordinary’ people are being targeted by terrorists on the Jalalabad and Airport Roads: CB 152;
xii)twelfth, it was expressly submitted in the Applicant’s May 2015 Submissions the evidence established a real chance that as a necessary and foreseeable consequence of being forced to return to Afghanistan, the applicant will suffer significant harm as defined in the Migration Act: CB 159; and
xiii)thirteenth, it was expressly submitted in the Applicant’s June 2015 Submissions that the applicant faced the real prospect of being stopped at a Taliban roadblock, beaten and subjected to cruel, degrading and inhuman treatment, and that this would be particularly so when regard is had to country information indicating the strict social standards imposed by the Taliban particularly in relation to having long beards and the fact that the applicant does not have a long beard: CB 173.
The applicant says that the claim which is said to arise is not a claim which the Tribunal is not accustomed to dealing with and, indeed frequently deals with, when assessing claims made by refugees from Afghanistan, see for example:
a)1408435 (Refugee) [2015] AATA 3340, [45];
b)1415574 (Refugee) [2016] AATA 3292;
c)1406165 (Refugee) [2015] AATA 3130;
d)1407642 (Refugee) [2016] AATA 3302;
e)1406336 (Refugee) [2015] AATA 3673;
f)1405829 (Refugee) [2016] AATA 3431;
g)1401381 (Refugee) [2016] AATA 3016;
h)1316895 (Refugee) [2015] AATA 3518;
i)1410810 (Refugee) [2015] AATA 3339;
j)1406319 (Refugee) [2015] AATA 3187; and
k)1411699 (Refugee) [2015] AATA 3564.
The applicant submits for the reasons cumulatively stated above, that the Tribunal fell into error as identified in the ground of review.
Minister’s submissions
The Minister’s submissions are as follows:
a)the function of the Tribunal is to respond to the case that the applicant advances: Dranichnikov at [78] per Kirby J; SGBB at [17] per Selway J; NABE (No. 2) at [58]-[60] per Black CJ, French and Selway JJ;
b)it is well established that a failure to deal with a claim, or a part of a claim, may lead to jurisdictional error on the part of a Tribunal, but in order for the applicant to establish such error, it needs to be demonstrated that the claim or relevant part of the claim was expressly made or clearly arose from the circumstances: NABE (No. 2); Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”);
c)the Tribunal Decision must be considered in the light of the basis on which the application was made, and not upon an entirely different basis which may have later occurred to the applicant: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 at [1] per Gleeson CJ;
d)there is no evidence before the Court to suggest that the applicant's protection claims were advanced other than in the terms of the Applicant’s May 2015 Submissions and the Applicant’s June 2015 Submissions. The Applicant’s June 2015 Submissions at CB 175 at [5.1] described the essence of the applicant's claim as:
...he was assisting the Shi'a people in Parachinar by transporting food and other goods to them and the convoy of trucks was ambushed and left behind identity documents which has resulted in the Taliban knowing who he is and where he comes from and he cannot, as a result, safely remain in Pakistan or go back to Afghanistan.
e)the applicant specifically claimed to be at risk of significant harm as a result of his imputed political opinion and imputed religious beliefs: CB 159 at [7.8] and CB 176-177 at [5.1];
f)the statement in the Applicant’s May 2015 Submissions that he “… will also be persecuted in Afghanistan by the Taliban because of his activities in Pakistan described above” cannot be seen to give rise to a blanket claim that the applicant faced harm as a result of his residence in Pakistan generally given the qualification that such persecution would be as a result of the “activities” described above: CB 140 at [2.5], those “activities” being his involvement in delivering food and other items to the Shi’a community;
g)the country information referenced in the Applicant’s May 2015 Submissions had no bearing on the Tribunal Decision and cannot be seen to have advanced the claim now made in circumstances where it related to the Taliban's activities in the Federally Administered Tribunal Areas of Pakistan: CB 148-149 and the situation in Kabul: CB 151-152, rather than the applicant's home town upon which the Tribunal assessed the applicant's risk of harm; and
h)in the absence of evidence to demonstrate that a claim was advanced in the terms referred to by the applicant, the sole ground of review in the Second Amended Application cannot succeed.
Consideration
In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence: Dranichnikov at [23] per Gummow and Callinan JJ;
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ. See also Plaintiff M61 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider; and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25] and [32] per Gummow and Callinan JJ.
In Dranichnikov the High Court said that failures of the type identified above entitled a court to exercise the discretion to grant relief (under s.75(v) of the Constitution): Dranichnikov at [33]-[34] per Gummow and Callinan JJ.
In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) the Federal Court observed at [42] per Allsop J, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim: Htun at [42] per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker”: Li v Minister for Immigration & Citizenship& Anor [2008] FCA 902 at [22] per Jessup J.
What is required of the decision-maker was described in practical terms in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 (“MZXIV (No. 2)”) where the Federal Magistrates Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”: MZXIV (No. 2) at [44] per Riley FM and of “a specific consideration of the claim”: MZXIV (No. 2) at [45] per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in WAEE at [47] per French, Sackville and Hely JJ, namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 887 (“M51”) the Federal Court was dealing with a claim by a Sri Lanka Tamil who said that he had been involved in humanitarian work raising funds for various Tamil groups in Sri Lanka. One of the bases for his alleged well-founded fear of persecution was that two of his associates who were involved in humanitarian work had recently been killed in Sri Lanka. After being taken for interrogation by security personnel they were found dead near a rail track in a Colombo suburb: M51 at [4] and [15] per Ryan J. The applicant’s humanitarian work had principally been conducted overseas, and for five years prior to 1999 in and out of the Seychelles, but with returns to Sri Lanka: M51 at [6], [7] and [8] per Ryan J.
In M51 the Federal Court was persuaded that the Tribunal had made no finding of fact regarding the alleged murder of the applicant’s colleagues, and that the conclusion to be drawn from that omission was that it did not regard this matter as material: M51 at [17] per Ryan J citing Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [5] per Gleeson CJ and [35] per Gaudron J (“Yusuf”). Where there was specific evidence concerning the deaths bearing directly on the issue of whether an applicant’s fear was well-founded, that evidence comprised a component integer of the applicant’s claim, and a failure to regard it as material raises an inference that the Tribunal did not ask itself the right question or had an erroneous understanding of what constitutes a well-founded fear of persecution: M51 at [18] per Ryan J citing Htun ALR at [42] per Allsop J and Yusuf at [75] per McHugh, Gummow and Hayne JJ.
In M51 the Federal Court observed that the likelihood of an applicant coming to the attention of authorities was certainly material to the question of a well-founded fear of persecution, but so was the treatment meted out to the applicant’s colleagues engaged in like activities, and a failure to take that into account was possibly failure to take into account a relevant consideration, and possibly a misapprehension of the question that it was required to ask upon which its powers was predicated, which could lead it into jurisdictional error of the type described in Yusuf: M51 at [18] per Ryan J. Where there was a misapprehension of a question to be asked, as well as a consequent failure to consider relevant material, and where the question was central to the exercise of the Tribunal’s jurisdiction under the Migration Act (as the question of whether the applicant had a well-founded fear of persecution was, and is) that error is jurisdictional, and the decision is made without jurisdiction, and is therefore a purported decision for the purposes of s.474 of the Migration Act: M51 at [19] per Ryan J citing Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [74]-[78] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
In M51 the Tribunal had recited a summary of the applicant’s case, including his claim that two colleagues, whom he had named, had been killed after being detained by the security forces. Thereafter, the Tribunal failed to refer to the matter again in its findings, or anywhere else in its decision. The absence of a recorded finding gave rise to two possible interpretations. In some cases it might be possible to infer that having raised the issue and not referred to it again a Tribunal was not convinced that the claim had been made out, as in Yusuf where there had been a claim of three attacks on the applicant but the Tribunal commented only upon two, on the basis that it was persuaded that there had only been two attacks: M51 at [20]-[22] per Ryan J, citing Yusuf at [90] per McHugh, Gummow and Hayne JJ. In M51 there were no findings by the Tribunal on events of a similar kind (as there had been in Yusuf in relation to the number of attacks) from which an inference could be drawn as to the Tribunal’s reasoning, and therefore there was available an inference that the Tribunal either fell into an erroneous understanding of what constitutes a well-founded fear of persecution or misdirected itself as to what further issues it needed to consider in light of its other conclusions: M51 at [23] per Ryan J. In M51 the Federal Court went on to observe at [26] per Ryan J that:
The available inference from the Tribunal’s failure to make any finding on the applicant’s claims relating to the death of his colleagues is that, given its duty under s 430 to record its findings on all matters it considers material, it did not consider the alleged deaths material to the claims before it: Yusuf per Gleeson CJ at 330-1 [5], and per Gaudron J at 338 [35]. In my view, a tribunal informed by a proper understanding of the law could not have considered that such a claim, if true, was not material to the question it was required by the Act to address, being whether the applicant had a well-founded fear of persecution. I consider, therefore, that the failure to make a finding on this issue indicates that the Tribunal did not ask itself the right question and thereby fell into legal error.
In M51 the Federal Court went on to observe that it was not able to accept a contention that, if the applicant were returned to Sri Lanka he would not attract the attention of authorities, made it unnecessary for the Tribunal to consider what, if anything, befell the applicant’s associates who had also been engaged in humanitarian work. A finding of future events does not impliedly negate the requirement to determine past events: M51 at [27] per Ryan J. There was, therefore, no alternative explanation for the Tribunal’s reasoning in M51 which was free from error of law, and there was therefore jurisdictional error: M51 at [26] and [33] per Ryan J.
In MZXBP the applicant contended that the Tribunal had failed to deal with his claim that his friend was murdered in circumstances where the friend had a similar role and profile to the applicant within the United National Party (“UNP”) in Sri Lanka, and where the friend was associated with him because he had helped the friend after he was beaten by attackers on one occasion: MZXBP at [12] per O’Dwyer FM. There was no dispute that “during the conduct of the hearing, the question of the applicant’s friend was raised.”: MZXBP at [13] per O’Dwyer FM. In the Tribunal’s “Findings and Reasons” the matter of the friend who was killed was not considered, and no finding was made in relation to this part of the applicant’s evidence: MZXBP at [13] per O’Dwyer FM. Evidence was led at the hearing to support the claim, including photographs of the funeral of his friend, and a more recent news item in a Sri Lankan paper reporting the killing of an organiser of the UNP: MZXBP at [15] per O’Dwyer FM. The Federal Magistrates Court observed at [19]-[20] per O’Dwyer FM that:
19. … it was a material and significant aspect of the applicant’s case that his profile and his involvement with the UNP was similar to that of his deceased friend. It was important and material for the Tribunal to evaluate the significance of his friend and the circumstances of his friend’s death in the context of the case as put by the applicant for a protection visa.
20. It is not simply enough to refer to the friend in the “Claims and Evidence” section of the decision and not in the “Findings and Reasons” section where I consider that it was encumbered [sic] upon the Tribunal to make an appropriate finding.
Two questions arise from the law, which require determination on the facts, namely:
a)was the relevant claim actually made and clearly articulated, or clearly discernible from the claim made; and
b)was the claim identified and considered by the Tribunal?
In the Court’s view the claim with respect to the applicant being a member of a particular social group of failed asylum seekers clearly arose on the materials before the Tribunal. The Applicant’s May 2015 Submissions made reference to:
a)the possibility that the applicant will be “forced to return to Afghanistan” having sought protection against persecution in Australia: CB 140 at [2.4];
b)the return “under duress” of persons to Afghanistan, in the context of a suggestion that the applicant could relocate to Kabul: CB 151 at [4.11.2] (and see also [4.11.3]); and
c)it being a necessary and foreseeable consequence of the applicant “being forced to return to Afghanistan” that the applicant “will suffer significant harm” as defined in the Migration Act: CB 159 at [7.9].
Likewise, the Applicant’s June 2015 Submissions refer to the applicant possibly being “forced to return to Afghanistan”: CB 166 at [2.2] and CB 173 at [4.10]. References to a “forced return to Afghanistan” clearly raise the issue of the applicant being forcibly returned to Afghanistan, having been deported from Australia as a failed asylum seeker. In the circumstances, the Court is of the view that the claim to be a member of a particular social group of failed asylum seekers was clearly raised by the applicant.
In relation to the question as to whether the claim that the applicant was a member of a particular social group, being returnees from the West, and whether that claim was clearly articulated or clearly arose on the materials, the Court considers that such a claim is raised by the materials in relation to returnees to Afghanistan and the consequences for those returnees at CB 151 at [4.11.2], as well as being raised by the material cited above in relation to failed asylum seekers, who will generally be returnees from the West.
The claim that the applicant is a member of a particular social group being Afghanis who lived illegally in Pakistan for a prolonged period, in this case approximately 13 years, is clearly articulated throughout the Applicant’s May 2015 Submissions and the Applicant’s June 2015 Submissions.
The more difficult question is whether or not the Tribunal failed to consider whether the applicant would face a risk of significant harm if returned to Afghanistan as a result of membership of the particular social groups of failed asylum seeker, returnee from the West or Afghan who had lived illegally in Pakistan for a prolonged period, when considering the complementary protection criteria.
When the Tribunal came to assess whether the applicant would be at risk of harm for a reason other than facing harm from the Taliban because of political and religious views imputed to him because he worked on a truck taking supplies to Shias in Parachinar, the Tribunal observed that Paktia Province (the applicant’s home province) was “insecure and dangerous”, but that “the primary targets” of the Taliban and other insurgent groups “are individuals and institutions associated with the Afghan government and security forces, and the international forces”: CB 191 at [45]. It is said that country information reports “consistently indicate that those targeted are people associated with government or security institutions”: CB 191 at [45]. The Tribunal found that there was “no credible evidence” that the applicant “as a Pashtun Sunni or for any other reason he has suggested or which arises from the credible evidence … would be targeted for a Convention reason for systematic and discriminatory harm that would constitute persecution should he return to his village in Paktia”: CB 191 at [45]. The Tribunal went on to find that any risk he might face was one of generalised violence arising from general insecurity and not one faced by the applicant personally, and in those circumstances the risk was not a real risk for the purposes of the complementary protection criterion: CB 191 at [45].
The Court has several difficulties with the Tribunal’s analysis, in the context of the claims made with respect to membership of a particular social group. There is no analysis or comment or consideration of the secondary or other non-primary targets of the Taliban or the insurgents, or who the secondary or non-primary targets of the Taliban and other insurgent groups might be. There is also only a consideration of persons “targeted” by the Taliban or other insurgent groups. There is no consideration of whether or not persons who are not targeted, and who return to a local village after more than 20 years away (a finding made by the Tribunal at CB 190 at [41]), having spent some time in both Pakistan and the West (in Australia) and who are also failed asylum seekers, might be the subject of an act which might cause significant harm by reason of membership of those particular social groups. The Tribunal did not examine the possibility that a person long absent from their village, and possibly not conforming to the social mores of the Taliban in an insecure and dangerous area, might be the subject of harm caused by an act of violence which was not targeted in the sense referred to in the country information. The necessity for the Tribunal to do so, arises from its own finding at CB 190 at [41] that:
… In my view, anyone in the applicant's village, including any Taliban present in the area, would know that he had not been there for more than twenty years.
The Tribunal simply did not examine or consider the applicant’s particular circumstances as a person returning to his home village after more than 20 years, including a prolonged period in Pakistan. It did not address the question, for example, given that the Taliban would know of the applicant’s return to the village (as found by the Tribunal at CB 190 at [41]), as to whether or not he might be seriously harmed because he might obviously have been a returnee from the West or from Pakistan, and as such, might fall under suspicion of being associated with government or security institutions.
The Court notes that the Tribunal said that there was no credible evidence that, as a Pashtun Sunni or for any other reason suggested by the applicant, that the applicant will be targeted in a manner which would cause harm. It might be said that that general conclusion was one which covered all of the matters arising from the Applicant’s May 2015 Submissions and the Applicant’s June 2015 Submissions, and otherwise, and consistent with the longstanding principles arising from Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, that this Court should not engage in merits review. Such a suggestion ignores the fact however that the general conclusion reached by the Tribunal involves the applicant being “targeted”, and fails to consider whether he might be harmed by local Taliban or other insurgent groups as a consequence of his membership of the identified social groups. The applicant’s membership of the particular social groups, and the particular circumstances in which he was returning to his village, including his absence of more than 20 years, required the Tribunal in determining whether the real risk was not one faced by the applicant personally, to consider the possible personal harm that the applicant might suffer by returning to his village, and in effect, being a stranger in a strange land. The Tribunal did not do this, and approached the matter at a greater level of generality, and in the Court’s view, therefore failed to consider the actual claim made by the applicant.
The conclusion reached above means that the Tribunal Decision is affected by jurisdictional error: Dranichnikov; Htun; M51.
Conclusion and orders
The Court has concluded that the Tribunal Decision is affected by jurisdictional error. It follows from that conclusion that jurisdictional error has been established, and that prerogative relief ought to be granted on the Judicial Review Application. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 18 June 2015, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 17 February 2014 according to law.
The Court will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 5 August 2016
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