BKF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 230

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKF16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 230

File number:	SYG 2023 of 2019
Judgment of:	JUDGE STREET
Date of judgment:	5 March 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal misapplied the relevant law – whether the Tribunal took into account irrelevant considerations – whether the Tribunal did not take into account relevant considerations – whether child’s Australian citizenship impacts on the applicants as possible members of the family unit – no jurisdictional error made out – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36, 438, 476
Number of paragraphs:	41
Date of last submission/s:	5 March 2021
Date of hearing:	4 February 2021
Place:	Sydney
Counsel for the Applicant:	In person
Solicitor for the First Respondent:	Ms E Warner Knight Australian Government Solicitor

ORDERS

SYG 2023 of 2019

BETWEEN:

BKF16

First Applicant

BKG16

Second Applicant

BKH16

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 July 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection visas.

2. The first applicant to these proceedings is the father of the second and third applicants. The applicants are citizens of Pakistan. On 12 June 2007, the first applicant arrived in Australia on a TU-574 visa.

3. On 25 March 2015, the first applicant lodged an application for protection, including, relevantly, the second and third applicants. The first applicant claimed to fear harm, in summary, on the basis that he was a person of Punjab ethnicity and a Shia Muslim who had served in the military. The first applicant also made claims on behalf of the second and third applicants that they cannot speak English and have effectively grown up here in Australia and would not be able to access medical treatment and would be at risk at schools.

4. On 27 May 2016, the Delegate found that the applicants did not meet the criteria and refused to grant the applicants Protection visas.

5. On 20 June 2016, the applicants lodged an application for review to the Tribunal.

6. By letter dated 13 March 2019, the Tribunal invited the applicants to attend a hearing on 28 March 2019. By letter dated 29 March 2019, the Tribunal agreed to the applicants’ request for postponement of the hearing and invited the applicants to attend a hearing on 5 April 2019. The applicants appeared on that date to give evidence and present arguments.

7. The Tribunal in its reasons summarised the background to the application for review.

8. The Tribunal identified the relevant law, including by pagination and an attachment to the Tribunal’s reasons.

9. The Tribunal summarised the applicants’ claims and evidence.

10. The Tribunal identified that there was a certificate that had been issued under s 438 of the Act (“s 438 certificate”). The Tribunal treated the same as invalid. The applicant suffered no practical injustice by reason of the s 438 certificate or the documents the subject of the s 438 certificate in the circumstance of the present case. The Tribunal also expressly referred to not putting any weight on the documents referred to in respect of the invalid s 438 certificate in its reasons.

11. The Tribunal identified being concerned by the first applicant’s delay in making the application for protection and took that into account. The Tribunal was satisfied that the Protection visa application was made out of a desperation to remain in Australia and is no more than an attempt to contrive a migration outcome.

12. The Tribunal took into account the lack of corroborative evidence in respect of the first applicant’s claims. The Tribunal was of the view that, given the considerable planning that had gone into the first applicant’s departure and its timing, it would have expected the first applicant to secure more records in relation to his potential protection claims than he presented to the Tribunal.

13. The Tribunal did, however, accept that the first applicant was employed in the army and by a particular authority. The Tribunal did not accept that threats were made to the applicant while he was in the army, either relating to his religion or any other matter. The Tribunal took into account the first applicant’s evidence that he had not suffered any harm whilst living in Pakistan. The Tribunal did not accept that employees from the authority for which the first applicant worked followed the applicant home or made threats to kill him. The Tribunal found that the first applicant had never been harmed while he worked with that authority. The Tribunal did not accept the first applicant had any other reason for leaving Pakistan than to study in Australia. The Tribunal also took into account that it had been more than twelve years since the first applicant had left Pakistan and that the applicant did not identify any individual likely to target him.

14. The Tribunal did not accept that the second and third applicants would be targeted because they speak English and/or are Shia and did not accept that they would not receive an education.

15. The Tribunal considered the first applicant’s claims in relation to being a Shia and the allegation that certain organisations would target him. The Tribunal raised with the first applicant the country information that there was a declining trend in sectarian violence. The Tribunal found that the first applicant did not have a well-founded fear of persecution on the basis of his Shia religion.

16. The Tribunal was satisfied that the first applicant did not have a well-founded fear of persecution for being a Westernised returnee with no family support network.

17. The Tribunal found that the first applicant and his children would not face harm from Taliban extremist fundamentalists should they return to Pakistan now or the reasonably foreseeable future.

18. The Tribunal was not satisfied that the first applicant would face any chance of harm from the Pakistani government because of a criminal history in Australia, which did not involve any Pakistani citizen.

19. Having considered the applicants’ claims individually and cumulatively, the Tribunal found that the applicants did not meet the criteria for the grant of a protection visa under ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

    BEFORE THE COURT

20. These proceedings were commenced on 7 August 2019.

21. On 18 October 2019, a Judge of the Court made litigation guardian orders in respect of the second and third applicants and made orders providing the applicants an opportunity to file an amended application, affidavit evidence and submissions. Other than the second respondent’s written submissions, which the Court received on 5 March 2021 and extended time for the filing of the same, no other documents have been filed by the applicants.

22. At the commencement of the hearing today, the Court explained to the first applicant the nature of the hearing and the first applicant confirmed that he understood the explanation given by the Court.

23. The first applicant made oral submissions referring to the age of his children and his need for stay in Australia inviting impermissible merits review or determination on the grounds of compassionate or discretionary considerations. This Court, just like the Tribunal, has no power to determine the matter on compassionate or discretionary grounds, nor can this Court revisit the merits.

24. The first applicant also submitted that the Tribunal had not carefully considered his claims and evidence. The Tribunal’s reasons are inconsistent with that submission and there is no evidence expressly identified by the first applicant that the Tribunal failed to consider. On the face of the Tribunal’s reasons, those reasons reflect a comprehensive, lengthy and thorough analysis of the claims and evidence and a genuine intellectual engagement with the applicants’ claims and evidence. The Court, in that regard, refers in particular to the documents that are identified in paragraph 33 of the Tribunal’s reasons and the careful and lengthy discussion about the applicants’ claims and the credibility of the same and the detailed reasons in respect of the weakness of the applicants’ claims.

25. The Tribunal was also willing to accept that the applicant was employed in the army and at the relevant authority. The Tribunal took into account that the first applicant was not harmed while working in the army for the relevant period and also took into account that the first applicant stated he was not harmed in any way, or at any time, during his time with the authority.

26. The Tribunal was also not satisfied that the first applicant has a well-founded fear of persecution on the basis of his religion.

27. The Tribunal also did not accept that the first applicant would be unable to obtain accommodation or suffer a denial of the capacity to earn a livelihood such that would threaten his capacity to subsist or other significant economic hardship or denial of access to basic services such as accommodation. The Tribunal found that the first applicant and his children will have the capacity to subsist on their return to Pakistan.

28. The Tribunal was also satisfied that the first applicant does not have a well-founded fear of persecution on the basis of membership of a particular social group, being long absent returnees to Pakistan with no family or support network, or Westernised returnees.

29. The Tribunal was satisfied that the first applicant and his children do not have a well-founded fear of persecution on the basis of them being returned to Pakistan. The Tribunal expressly referred to the applicants not having a well-founded fear of persecution for any reason, including race, religion, nationality, political opinion, membership of a particular social group, now or in the reasonably foreseeable future if they return to Pakistan.

30. The Tribunal’s reasons clearly reflect a consideration of the applicants’ claims individually and cumulatively. The adverse findings by the Tribunal on the face of the Tribunal’s reasons are logical and rational and were open for the reasons given by the Tribunal. No jurisdictional error arises by reason of the first applicant’s submissions that the Tribunal did not carefully consider the applicants’ evidence. The Tribunal’s reasons are consistent with the Tribunal, in fact, carefully considering the whole of the applicants’ claims and evidence and making dispositive findings that were open to the Tribunal.

31. The first applicant also submitted that the Tribunal had not considered the claims of the second and third applicants. That is contrary to the reasons of the Tribunal.

32. No jurisdictional error arises by reason of anything submitted by the first applicant orally.

    GROUNDS IN THE APPLICATION

33. The grounds in the application are as follows:

    1 The Administrative Appeals Tribunal erred in its decision in applying protection visa criteria prescribed under the law.

    2. The Administrative Appeal Tribunal erred in its decision by giving irrelevant consideration that the applicant has not genuinely threatened and evidence of service provided I sensitive departments.

    Particular:

    1. Tribunal failed to take into account the whole gamut of evidences and circumstances before making the decision.

    Discrimination of Shia sect of Islam in Pakistan is a known issue. That threat to shia Muslims at all levels of society (many prominent shia scholars have been killed) is a fact not acknowledged by the RRT.

    I will be seeking legal assistance to elaborate on these points in the next hearing. I am unable to seek legal assistance at this time due to constraint of time.

    3. The Administrative Appeal Tribunal erred in its decision by not giving consideration to the documents provided in evidence of service and made legal error.

    Particular:

    The Tribunal has had regard to documents provided, purporting to be threat letters from … to himself and the army, … services and never leave Australia from 12^th Jun 2007 due to life threats, which the applicant submitted to the Tribunal in support of his claims.

    GROUND 1

34. In relation to ground 1, the Tribunal’s reasons correctly identified the relevant law, including an attachment to its reasons. There is no basis to find that the Tribunal misapplied the relevant law. In the absence of particulars, ground 1 is incapable of making out any relevant error. No jurisdictional error arises by reason of ground 1.

    GROUND 2

35. In relation to ground 2, for the reasons already advanced, it is apparent that the Tribunal did take into account the whole of the applicants’ claims and evidence and there is no basis to find that the Tribunal failed to do so. There has been no evidence identified by the applicants that the Tribunal failed to take into account, nor have the applicants identified any irrelevant consideration taken into account. The Tribunal’s reasons expressly took into account the first applicant’s claims in relation to Shias in Pakistan and recognised that the first applicant was a Shia and described his fears in that regard at paragraphs 21 and 140 of its reasons. The Tribunal expressly made an adverse finding in that regard which was dispositive of that claim at paragraph 147 of its reasons. No jurisdictional error arises by reason of ground 2.

    GROUND 3

36. In relation to ground 3, there have been no documents identified that the Tribunal failed to take into consideration. It was not necessary for the Tribunal to refer to every piece of evidence before the Tribunal in its reasons. There was no threat letter provided by the first applicant to the Tribunal on the evidence before this Court. The material provided by the first applicant was identified at paragraph 33 of the Tribunal’s reasons. The absence of supporting material was a relevant factor for the Tribunal to take into account. The Tribunal also took into account the first applicant’s claims that he has never returned to Pakistan since arrival in Australia and his claim that he would be harmed if returned as it was expressly referred to in paragraph 16. The Tribunal expressly rejected the applicants’ claims to fear harm and made adverse findings that were open and logical for the reasons given by the Tribunal. No jurisdictional error arises by reason of ground 3.

    FURTHER SUBMISSIONS

37. In the course of the hearing, the Court raised with the first respondent that there was a third child in respect of whom it appeared had obtained Australian citizenship. The Court raised the question whether this had any impact on the applicants as possible members of the family unit. The solicitor for the first respondent was given an opportunity to put on written submissions in respect to this issue and the applicant was given an opportunity to reply.

38. The first respondent’s submissions dated 18 February 2021 relevantly explain that the relevant child had not become an Australian citizen by the time of the Delegate’s decision and that the relevant child acquired citizenship on 4 March 2019, being in the course of the review by the Tribunal. That citizenship was acquired by reason of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth). The relevant child, having been born here and having remained in Australia for 10 years, became an Australian citizen under the said provision. The Tribunal was correct to find that the child who was now an Australian citizen cannot satisfy the requirements of s 36(2) of the Act. The Court accepts the first respondent’s submission that the remaining applicants did not become entitled to succeed under the review application by reason of the relevant child becoming an Australian citizen and that there was no error by the Tribunal in its determination of the review application for the applicants.

39. The applicants were given an opportunity to respond to the first respondent’s submissions dated 18 February 2021 by providing written submissions on or before 4 March 2021. The applicants did provide written submissions, dated 4 March 2021, erroneously described as ‘second respondent’s written submissions’ which were received on the 5 March 2021 and the Court extended time for filing of the same. Those submissions contend that s 12 of the Australian Citizenship Act 2007 (Cth) has no bearing on the family members included in the application for the Protection visa and contends that the Tribunal was correct to continue the review. No argument has been developed as to why the Australian Citizenship acquired by the child who has remained in Australia for ten years gives rise to any error in the decision of the Tribunal. The submissions go beyond responding to the order of the Court made on 4 February 2021 and make reference to Articles 17 and 23 of the International Covenant on Civil and Political Rights as well as Article 3 of the Convention of the Rights of the Child and contend that it was necessary for the Tribunal to consider the best interests of the children in the application for protection. Contrary to the applicants’ submissions, the Tribunal was not required to determine the best interests of the children in determining whether the applicants’ satisfy the criteria under ss 36(2)(a) and (2)(aa) of the Act. Neither criteria for a Protection visa should be read as requiring a mandatory consideration of the best interests of the children in the review required in respect of the application for the Protection visas. No jurisdictional error in the Tribunal’s reasons arises by reason of this submission.

40. The written submissions on behalf of the applicants also contend that there has been unlawful or arbitrary interference with the applicant’s family under Article 17(1) of the International Covenant on Civil and Political Rights. The Tribunal provided logical and rational reasons in support of its adverse findings and correctly identified the relevant law. The decision of the Tribunal cannot be described as arbitrary and was made pursuant to the statutory powers vested in the Tribunal in respect of the review. On the face of the Tribunal’s decision the review was lawful and conducted in accordance with the statutory regime. Accordingly no breach of Articles 17(1) or 23(1) of the International Covenant on Civil and Political Rights is made out.  The reference to the length of time that the applicants have been in Australia in substance invites impermissible merits review and does not establish any jurisdictional error by the Tribunal. No jurisdictional error is made out by reason of the applicant’s written submissions dated 4 March 2021.

41. Nothing submitted orally by the first applicant or the grounds in the application identify any jurisdictional error. Accordingly, the application is dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       5 March 2021