BLH16 v Minister for Immigration

[2018] FCCA 3599

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3599

Catchwords:
MIGRATION – Application for judicial review – whether the Tribunal failed to afford Applicant procedural fairness – whether Tribunal failed to consider a claim arising squarely on material before it – safety of reaching relocation area – country information – no failure to afford procedural fairness – Tribunal did not fail to consider claim – application dismissed.

Legislation:

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

Cases cited:

NAVK v Minister for Immigration [2004] FCA 1695

Minister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194

Applicant: BLH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1497 of 2016

Judgment of: Judge McNab

Hearing date: 31 October 2018

Date of Last Submission: 31 October 2018

Delivered at: Melbourne

Delivered on: 7 December 2018

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Nadeem Lawyers

Counsel for the Respondents: Ms C Symons

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 14 June 2016 and amended 17 October 2018 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1497 of 2016

BLH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(AS CORRECTED)

Introduction

1. The Applicant commenced this proceeding by an application filed on

   
   

   14 June 2016. By an amended application filed on 17 October 2018 the Applicant seeks to challenge the decision of the Second Respondent (‘the Tribunal’) made on 10 May 2016. The Tribunal found that the Applicant did not meet the criteria for a Protection (Class XA) Visa (‘Visa’) set out in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) and affirmed a decision made by a delegate of the First Respondent not to grant the Applicant the Visa.

Grounds of review

1. The amended application contains two grounds:

   1.The Applicant was denied procedural fairness, in that he was not told of the existence of a certificate under section 438 of the Migration Act 1958 nor the existence of material covered by that certificate.

   2.The Tribunal failed to consider a claim arising on the material, or otherwise failed to exercise its jurisdiction lawfully, in that it failed to consider whether the Applicant could safely access Parachinar upon any return to the receiving country Pakistan.

Background

1. The submissions of the First Respondent accurately summarised the Applicant's application in claims and the conclusions of the Tribunal. They are as follows with footnotes omitted:

   a)The Applicant is a citizen of Pakistan. On 23 June 2012, he arrived at Christmas Island. On 26 November 2012, he lodged an application for the Visa with the assistance of his representative. He provided a statement and written submissions (prepared by his representative) in support of his application. The Applicant made claims including that:

   i)he is a Shia Muslim and Pashtun and member of the Turi tribe. He was born in and resided for all of his life (prior to travelling to Australia) in Parachinar (Kurram Agency);

   ii)his father had a grocery shop in Parachinar and the Applicant started working with him (in the shop) when he was about 17 years of age;

   iii)supplies for the grocery shop were purchased from Peshawar and transported back to Parachinar on hired trucks;

   iv)the roads from Peshawar to Parachinar are very dangerous due to attacks carried out on Shia people by the Taliban. In 2007, the Applicant’s father’s delivery truck was looted and destroyed during a journey between the two locations. On another occasion, in 2008, the Applicant’s sister in law died in hospital in Parachinar as it was not safe to transport her to Peshawar hospital;

   v)there are regular bomb blasts in Parachinar. In the most recent one (in May 2012), the Applicant’s cousin was killed;

   vi)there is just one road in and out of Parachinar and Sada which is a Taliban and Sunni dominant area, is on the way. The Taliban catch the Shia people and behead them and mutilate them;

   vii)the Applicant left Pakistan because he did not want to be killed like many other Shia people;

   viii)relocation to another area in Pakistan is not a reasonable option.

   b)On 10 December 2012, a delegate of the Minister made a decision to refuse to grant the Applicant the Visa. The delegate was unable to discount the possibility that the Applicant would be harmed as a result of sectarian violence in the Kurram agency but found that the Applicant could relocate within Pakistan to locations outside of the Federally Administered Tribal Areas (FATA).

   c)On 17 December 2013 the Applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision. On 2 December 2014, the Tribunal affirmed that decision. On 6 January 2015 the Applicant applied to this Court for judicial review of the decision of the Tribunal and on 31 July 2015, the application was allowed and the matter remitted to the Tribunal (differently constituted) for reconsideration.

   d)By email dated 8 December 2015 and sent to the Applicant’s representative, the Tribunal invited the Applicant to appear at a hearing. The hearing took place on 2 February 2016 and the Applicant participated with the assistance of an interpreter and with his representative present.

   e)Prior to the hearing (on 19 January 2016) and following the hearing (on 5 April 2016) the Applicant’s representative provided written submissions to the Tribunal.

   f)On 10 May 2016, the Tribunal notified the Applicant’s representative of its decision of the same date to affirm the decision of the delegate.

   g)In the decision record, the Tribunal:

   i)set out the relevant law; and

   ii)summarised the Applicant’s claims and the evidence provided by him. The Tribunal referred specifically in this context to the Applicant’s arrival interview, statement, written submissions, and evidence at hearing.

   h)The Tribunal accepted that the Applicant was a reliable witness and made findings of fact that largely reflected the Applicant’s account of his background, identity and experiences of living in Parachinar. The Tribunal noted in this regard that the Applicant’s family continued to reside in Parachinar and that, on the Applicant’s evidence, they had not been harmed or received threats since the Applicant’s departure.

   i)The Tribunal accepted that there was a documented history of violence directed at Shias by the Taliban and associated or similar groups throughout Pakistan and in the FATA area, including Parachinar, in particular. However, the Tribunal also observed that the “trend of recent evidence” suggested that there had been some stabilisation in the region and that since the Applicant’s departure from Pakistan in 2012, the number of attacks in Parachinar had significantly reduced.

   j)The Tribunal found, having regard to a range of country information, including country information identified by the Applicant’s representative, that whilst it accepted there was some level of risk to the Applicant in the context of generalised violence, that risk was only remote. The Tribunal considered that the fact the Applicant’s family had remained in the area of Parachinar and had not experienced any harm, indicated that the Applicant had no particular profile that would result in him facing serious harm from the Taliban, Islamic State, Sunnis or other extremist groups or individuals in Parachinar.

   k)The Tribunal was not satisfied that the Applicant had a well-founded fear of harm as a result of his Shia religion, his Turi/Pashtun ethnicity, his actual or imputed political opinion against the Taliban or other extremist Sunni groups and/or sympathisers, or from Islamic State, or his political opinion as someone who is supportive of the West.

   l)The Tribunal also found, given the considerable change in conditions in the Applicant’s home region, that there was no real chance the Applicant would suffer serious harm so as to give rise to obligations of complementary protection.

Ground one

1. In relation to ground one, the Court adopted the approach endorsed by the Full Court of the Federal Court in Minister for Immigration and Border Protection vCQZ15 [2017] FCAFC 194 and admitted into evidence before the Court the exhibits to an affidavit of Nabila Nithar Buhary (‘Buhary affidavit’), affirmed 29 October 2018, which attached the s 438 certificate and the documents subject to that certificate.

2. I accept the submission of the Respondent that even if it was found that the Tribunal failed to afford the Applicant procedural fairness, the documents were either:

   a)information that the Tribunal did not consider would be the reason or a part of the reason for affirming the decision under review; or

   b)information that the Applicant gave during the process that led to the review.

   The documents recorded the interview process that occurred on the Applicant’s arrival in Australia.

3. When the Court determined to admit into evidence the exhibits to the Buhary affidavit, the Applicant made a formal objection to its admission, advised that the ground was not abandoned and otherwise made no further submissions.

4. Ground one is dismissed.

Ground two

1. The Applicant submits that the Tribunal was required to consider all claims that were expressly made by the Applicant as well as those claims that clearly arise from the materials before it, even if not expressly made (or even alluded to) by the Applicant: NAVK v Minister for Immigration [2004] FCA 1695 [15]. It is said that a claim arises “clearly” from the materials where: either in fact it is appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.[1] It is submitted that in circumstances where the Tribunal found at [65] that the Applicant does not have a well-founded fear of persecution if he returns to Parachinar now or in the reasonably foreseeable future, the Tribunal was required to consider how the Applicant might reach Parachinar safely from his port of entry. Paragraph 5 of the Applicant's submissions provided:

   it is accepted that the Applicant did not make any claims about potential exposure to harm in reaching or accessing parish in our; but that is hardly surprising given the Applicant advanced his case on the footing that he was exposed to risk of harm in Parachinar – he could hardly be expected have focused his attention on getting there in circumstances where he fears he will be harmed if he goes there.

   [1] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 [15].

2. The First Respondent's submissions in relation to ground two were to the effect that the Applicant was on notice as a result of questions being directed to him that the Tribunal may find that, due to improvements and conditions in Kurram Agency, the Applicant could return to Parachinar. It is said that this understanding is made explicit in the written submissions filed on the Applicant's behalf on 5 April 2016. The First Respondent also submits that the question of the Applicant's ability to travel to Parachinar and surrounding villages in the Upper Kurram were referred to in the Tribunal decision at [60] and subject of a finding at [62].

Consideration

1. The Applicant made post hearing written submissions to the Tribunal, dated 5 April 2016,[2] prepared by his legal representatives. At [74] – [85], those submissions specifically address the issue of travel security if the Applicant was required to return to Pakistan. At [76] of the submission, the Applicant’s representative referred to country information mentioned by the Tribunal at the hearing which stated:

   …the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015. Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles.[3]

   The submission referred to further country information and stated at [81];

   Consequently, it would be unreasonable and unsafe the Applicant and his family to travel away from the Kurram Agency on roads that may be subject to attack.

   [2] Court Book 296 – 314.

   [3] Ibid 311.

2. Whilst the submission was directed to the dangers involved in relocation,[4] these submissions are clearly addressing the issue of security the security of travel within Pakistan and would include travel from the Applicant's port of re-entry into Pakistan to Parachinar.

   [4] Ibid 312.

3. At [31] of the Tribunal decision, the Tribunal noted:

   The Applicant said that it was still the case that was dangerous to travel on roads, particularly on the five hour trip from Parachinar to Peshawar. He said that that the terrorist groups cut off Shia’s hands and arms to scare others [5]

   [5] Ibid 325.

4. At [53(g)] Tribunal accepted that:

   The Thal-Parachinar road, which is the main access road between the Kurram Agency and other parts of Pakistan, has been subject to considerable violence from extremists directed primarily at Shias travelling on that road.[6]

   [6] Ibid 330.

5. At [54], the Tribunal made reference to DFAT country information. In the DFAT 2014 Thematic Report, Shias in Pakistan, 15 January 2015 states:

   [4.33]DFAT understands that the Thal-Parachinar road remains open and there have been no major security incident incidents on the road in 2015. Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of violent vulnerability in these security measures.

   [4.34]More than 3,700 families return to their places of origin in 2014, including Parachinar and surrounding villages in upper Kurram. This represents approximately 25% of those formerly displaced – most of who were reportedly Sunnis from lower Kurram. Returns to Kurram and Orakzai Agencies recommenced on 1 October 2015 following a nine-month suspension because of ongoing military operations. From October - November 2015, 3,041 families returned to Kurram Agency and 710 families returned to Orakzai Agency. Many Shia Temporarily Displaced Persons (TDP's) have also settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.

6. At [55] of the decision, the Tribunal raises that it discussed the current security situation in Parachinar with the Applicant and his agent and received the post hearing submissions.[8] The Tribunal referred to the detail of the submissions which made reference to 12 bomb blast attacks or suicide bombings in the period of 13 January 2016 to 27 March 2016. The Tribunal noted “while these reports state that bombings occurred in various parts of the FATA, there is no report of attacks in Parachinar”.[9]

   [8] Ibid.

   [9] Ibid.

7. At [58] the Tribunal stated that:

   …at the time the Applicant left Pakistan in 2012, his area in Parachinar and the surrounding districts were subject to considerable violence. The Tribunal accepts that at that time and, until relatively recently, that as a Shia Turi Pashtun from Parachinar there would have been a real chance of serious harm for this reason.

8. From [59] – [63] of its reasons, the Tribunal outlined why it considered that the situation in that area had changed and why the Applicant did not have a well-founded fear of persecution if he is returned to Parachinar.

9. At [60], the Tribunal stated:

   DFAT also reported that the Thal-Parachinar Road remains open and that there have been no major security incidents on the road in 2015. It has stated that Federal security forces continue to maintain armed checkpoints along the road which is used by both civilian and military vehicles, but that the 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures. Other reports confirm that the road is open and in use and that the movement of trucks has generated increased economic activities and employment opportunities

10. There are repeated references by the Tribunal to the safety of travel to and from the Kurram Agency, and to the Applicant's submissions in relation to security of travel in Pakistan. It is apparent that the Tribunal has considered claims made by the Applicant as to the safety of travel within Pakistan and has thereby specifically considered the safety of the Applicant's passage to and from the Kurram Agency.

11. Ground two must be dismissed.

Conclusion

1. For these reasons the application of the amended application filed on

   
   

   17 October 2018 must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date: 7 December 2018

CORRECTION NOTE

Changes have been made as follows:

In the first sentence of paragraph 5, the word "because" was removed, and in paragraph 5 (a) the word “not” was added.

[7] Ibid 332.