BOQ16 v Minister for Immigration

[2017] FCCA 256

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 256

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of inter family harm in Pakistan – applicant disbelieved in part and Tribunal finding that harm was not Convention related – otherwise no real risk of significant harm – whether the Tribunal had overlooked relevant material considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91S, 424A, 424AA

Cases cited:
Minister for Immigration v SZRKT [2013] FCA 317,(2013) 302 ALR 572
Minister for Immigration v SZSRS & Anor (2014) 309 ALR 67
SZOIN v Minister for Immigration [2011] FCAFC 38

Applicant: BOQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1630 of 2016

Judgment of: Judge Driver

Hearing dates: 7 December 2016, 16 February 2017

Delivered at: Sydney

Delivered on: 3 March 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Solicitors for the Respondents:

Mr T Reilly

DLA Piper

ORDERS

1. The application filed on 27 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1630 of 2016

BOQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 May 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The applicant is from Pakistan and had made claims of serious harm relating to inter family disputes.  Background facts relating to the applicant’s claim for protection and the decision of the Tribunal on it are set out in the Minister’s first written submissions filed on 10 November 2016. 

3. The applicant is a male citizen of Pakistan born on 11 October 1984.[1]  He arrived in Australia on 3 March 2012 as the holder of a business subclass 456 visa.[2]

   [1] Court Book (CB) 26

   [2] CB 13, 88, 156 [2]

4. The applicant applied for a protection (Class XA) visa on 2 April 2012.[3]  His claims were set out in his application form:[4]

   a)the applicant claimed to fear harm in Pakistan arising out of a long time family dispute with another family.  He claimed that his uncle was murdered in 1978, following which his father was accused of a revenge murder and jailed for two years.  The applicant claimed that, in 1996, two of his father's uncles were murdered, and three others were injured, yet his father escaped.  He claimed that all eight sons of the rival family were arrested and jailed for five years, and were subsequently released from 2001 subject to strict bail conditions, until 2006.  The applicant claimed that, between 2006 and 2009, his family's business and farm were attacked on five occasions;

   b)the applicant claimed that, on 6 January 2010, he was accused of an offence, and that his father had to bribe the police to avoid the applicant’s arrest.  He claimed that the rival family began fighting internally and several family members were killed.  The applicant stated that the rival family blamed the hostilities on the applicant's family;

   c)the applicant claimed that he was on the rival family's hit list and that they planned to kill him.  He claimed that the government authorities were unable to stop the rival family, and that it was difficult to rely on police protection in Pakistan. 

   [3] CB 1-25

   [4] CB 17-20

5. The application was refused by the delegate on 22 May 2014.[5]

   [5] CB 87-103

6. The applicant applied to the then Refugee Review Tribunal for review of the delegate's decision on 18 June 2014.[6]

   [6] CB 110-115

7. The applicant was invited to,[7] and attended,[8] a hearing before the Tribunal held on 9 December 2015.

   [7] CB 124-125

   [8] CB 128-131

8. The Tribunal made its decision on 31 May 2016.[9]  The Tribunal affirmed the decision under review not to grant the applicant a protection (Class XA) visa.

   [9] CB 155-170

The Tribunal's decision

1. The Tribunal was prepared to accept the applicant's claims about events which he claimed occurred in the distant past, including the events which the applicant claimed took place in the 1970s  and 1996.[10] 

   [10] CB 163-164 [44]

2. However, the Tribunal took issue with the applicant's claims in relation to events after 2006, and found that the rival family had not been involved in any recent incidents of harm against the applicant or his family.[11] 

   [11] CB 164 [45]

3. In relation to the applicant's claim that he was arrested in 2010, the Tribunal found that no action had been taken against him, and thus it did not form a basis for demonstrating that the applicant faced a real chance of serious harm or real risk of significant harm.[12] 

   [12] CB 164 [46]

4. In relation to the applicant's claims that his brother was arrested in 2015, the Tribunal found this to be plausible, but noted that he was later released.  As such, the Tribunal was not satisfied that the applicant faced a real chance of serious harm or real risk of significant harm because of this in the reasonably foreseeable future.[13] 

   [13] CB 164 [47]

5. The Tribunal noted that, on the material before it, the applicant's fears did not appear to fall within any one of the Refugees Convention reasons of race, religion, nationality, membership of a particular social group or political opinion.[14]

   [14] CB 164 [49]

6. The Tribunal nevertheless considered whether the applicant's fear of harm arose because of his membership of his family, and whether this constituted membership of a particular social group, having regard to s.91S of the Migration Act 1958 (Cth) (Migration Act).[15] 

   [15] CB 165 [50]-[51]

7. The Tribunal concluded that the applicant's claimed fear of harm was not for any Convention reason.[16]

   [16] CB 165 [51]

8. The Tribunal went on to consider whether the applicant alternatively satisfied the complementary protection criterion.[17] 

   [17] CB 166-168 [55]-[65]

9. The Tribunal found that the rival family had not attacked his family in the recent past, and had regard to the fact that the applicant and his family continued to reside at the same address for many years without incident, and that his family had continued to reside at this address since the applicant departed Pakistan.  The Tribunal also had regard to the fact that the applicant had repeatedly travelled outside of Pakistan since 2009, and returned each time without incident, and that he was granted a visa which would have enabled him to depart Pakistan from 24 September 2011, but that he did not leave the country until March 2012.[18]

   [18] CB 166 [57]

10. The Tribunal found that it was not satisfied, on the evidence before it, that there were substantial grounds for believing there was a real risk that the applicant would suffer significant harm now or in the reasonably foreseeable future.[19]

    [19] CB 166-167 [59]-[61]

Current proceedings

1. These proceedings began with a show cause application filed on 27 June 2016.  The grounds in that application are:

   1. The Second respondent decision dated 31 May 2016 (AAT case number 1410824) is affected by jurisdictional error because the second respondent failed to consider all the integers of the applicant’s claim that he would face serious harm in Pakistan.

   By failing to consider the entirety of the claims and evidence, the Second Respondent made jurisdictional error of the Kind identified in Minister for Immigration and Citizenship v SZRAK [2013] FCA 317.

   2. The Tribunal constructively failed to exercise its jurisdiction.

   Particular:

   The applicant provided documents to the Tribunal to corroborate his claims.  The Tribunal failed to engage in an active intellectual process of these documents.  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place to no weight on the documents without engaging to the contents of these documents.  It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

   3. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of it being relied upon, and to invite the applicant to comment upon or respond to that information.

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempts to, and did not, comply with the requirements set out in section 424AA of the Act.

   [4].    The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.

   The Tribunal erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his return to Pakistan. (errors in original)

2. The matter came before me for a show cause hearing on 7 December 2016.  At that time, the only evidence I had before me was the court book filed on 16 August 2016.  I received as a submission the applicant’s affidavit filed with his show cause application.

3. After hearing from the parties, it was apparent that, save for one issue, there was no substance in the grounds advanced by the applicant.  The exception concerned the applicant’s assertion that the Tribunal had overlooked a significant document, namely a First Information Report (FIR) that he had submitted to substantiate his claim that a false case had been filed against him by the enemies of his family.[20]  It appeared from the court book that only four FIRs were in evidence before the Tribunal and none of those related to the alleged false case.  The applicant maintained from the bar table that he had submitted five FIRs and that one had been overlooked.

   [20] CB 164 [46]

4. I made the following orders:

   1. The applicant is to file and serve, no later than 23 December 2016, an affidavit attaching the alleged missing FIR and explaining the circumstances of its submission.

   2. On condition Order 1 is complied with, the following orders apply:

   a. Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted on the basis that material information was overlooked.

   b. The matter is listed for a final hearing at 2.15pm on 16 February 2017.

   c. The applicant is to provide any outline of legal submission not less than 14 days before the final hearing.

   d. The Minister is to provide any further outline of legal submissions not less than 7 days before the final hearing.

   3. The parties have liberty to apply for further directions or orders on five days notice.

   4. In the event Order 1 is not complied with the application is dismissed by force of this Order with effect from 23 December 2016, with the applicant to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

5. The applicant filed two affidavits on 23 December and 30 December 2016.  The first affidavit attached very poor quality copies of the FIR and translation which the applicant alleges were missing.  The second affidavit attached better quality copies.  In both affidavits the applicant deposed that the documents were provided to him from Pakistan and were sent to him on 19 December 2016.

6. I received both affidavits at the final hearing of this matter on 16 February 2017.  At the outset, the Minister raised as a preliminary issue that the applicant had not complied with order 1 made on 7 December 2016 as his affidavits did not explain the circumstances of the submission of the FIR to either the Minister’s Department or to the Tribunal.  Counsel for the Minister submitted that the application should be declared to have been dismissed pursuant to order 4. 

7. In order to deal with that issue, I took oral evidence from the applicant.  He stated that he had provided the fifth FIR with the other four FIRs which he had furnished to the Minister’s Department.  The applicant’s evidence was that the documents had been provided with his protection visa application.  The applicant gave evidence that he only realised there was a missing FIR when, at the Tribunal hearing, he was asked whether anything adverse had happened to him or his family between 2009 and 2012 and he had raised the issue of the false case.

8. Under cross-examination, the applicant resisted attacks upon his credibility but was forced to concede, by reference to the court book, that the other four FIRs were not provided to the Minister’s Department at the time he filed his protection visa application but some months later.  He explained the fact that he had now provided fresh documents from Pakistan on the basis that he had not retained the original documents he had provided to the Minister’s Department. 

Consideration

1. There are two issues to resolve.  The first is whether the applicant’s account concerning the alleged missing FIR is to be believed.  If the answer to that question is “yes”, the next question is whether the overlooked document gives rise to a finding of jurisdictional error affecting the decision of the Tribunal. 

2. I am not persuaded that the applicant’s account of the alleged missing FIR is truthful.  First, his two affidavits are unhelpful in explaining what had happened to the original documents.  The affidavits are effectively silent on that question.  The additional oral evidence provided by the applicant amounts to an assertion that he had provided five FIRs to the Minister’s Department at the same time.  The four FIRs that were dealt with by the delegate and the Tribunal are reproduced at CB 44-47.  Those documents bear folio numbers from the Department’s file, being folios 41 to 43.[21]  In the second paragraph under the heading “Findings of fact”[22] the delegate identifies those four documents in his decision. 

   [21] two documents are folioed number 42

   [22] CB 92

3. At [7] of its reasons the Tribunal identifies the four FIRs in evidence before it.[23]  Further, at [17] the Tribunal states that it showed the applicant at the Tribunal hearing the documents he provided to the Department.  In those circumstances, it is surprising that the applicant did not mention at the Tribunal hearing that there was a missing FIR.  That incongruity is increased when one refers to [46] of the Tribunal’s decision[24] which the applicant relies upon as the discussion of significance at the hearing upon which the missing FIR bears.

   [23] CB 157

   [24] CB 164

4. Further, it is troubling that the applicant now relies upon fresh documents supplied from Pakistan in December 2016, on the basis that he did not retain a copy of documents he provided to the Minister’s Department. 

5. I find that the applicant did not provide any of the documents attached to his affidavits filed on 23 and 30 December 2016 to the Minister’s Department in relation to his protection visa application.

6. Even if the documents now in issue had been provided to the Minister’s Department I would not be persuaded that the Tribunal’s decision is in consequence affected by any jurisdictional error.  There are two reasons for this.  The first is that it is clear that there was no fifth FIR before the Tribunal.  If it had been provided to the Minister’s Department it would follow that it was not in the documents provided by the Minister’s Department to the Tribunal.  An error by the Minister’s Department in that regard does not give rise to jurisdictional error in the Tribunal’s decision.[25]  Secondly, even if the documents had been before the Tribunal, it is doubtful that they would have made any difference.  The Tribunal at [46] appeared to accept as a fact that the applicant and his brother were falsely charged in relation to a shooting in 2010. That is the incident to which the fifth FIR is said to relate.  The Tribunal reasoned that because no action was taken against the applicant and his brother because the details in the charge were false, no harm followed from it.  It seems unlikely that a different finding would have been made if the Tribunal had seen the missing FIR. 

   [25] see SZOIN v Minister for Immigration [2011] FCAFC 38

7. In other respects in relation to the grounds of review advanced by the applicant, I accept the Minister’s submissions.  I was satisfied on 7 December 2016 that those grounds did not raise an arguable case of jurisdictional error.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider all the integers of the applicant's claims that he would face serious harm in Pakistan.  The applicant has not particularised what integer he asserts the Tribunal failed to consider.  The Tribunal considered the totality of the applicant's claims and made findings of fact reasonably open to it on the material and evidence before it.

2. Ground 1 also asserts that the Tribunal failed to consider the entirety of the applicant's evidence.  The Minister interpreted the reference to Minister for Immigration v SZRAK to be a reference to Minister for Immigration v SZRKT[26], as evident from the citation.  I accept that (with the exception of the issue of the missing FIR dealt with above) any such allegation cannot be made out, for the reasons set out below in relation to Ground 2.

   [26] [2013] FCA 317

Ground 2        

1. Ground 2 asserts that the Tribunal failed to engage in an active, intellectual process in relation to documents which the applicant provided to the Tribunal to corroborate his claims. 

2. Insofar as the ground asserts that the Tribunal ultimately gave the documents no weight on the basis of credit findings, this is factually incorrect.  The Tribunal made no such finding, and the particular to Ground 2 bears no resemblance to the Tribunal's findings in this matter.

3. The Tribunal is required to consider documents submitted by the applicant which are cogent and corroborative of the claims before it.[27]  The Tribunal errs when it fails to consider material that is centrally important to its decision making process but does not err merely for failing to consider relevant material.[28]

   [27] See Minister for Immigration v SZRKT & Anor (2013) 302 ALR 572

   [28] See Minister for Immigration v SZSRS & Anor (2014) 309 ALR 67 at [55]-[59]

4. The applicant submitted the following documentary evidence to the Minister’s Department and the Tribunal in support of his claims:

   a)a copy of his passport;

   b)a FIR dated 8 December 1974;

   c)a FIR dated 10 November 1996;

   d)a FIR dated 22 June 2011;

   e)a FIR dated 18 May 2010;

   f)a Rawalpindi Chamber of Commerce & Industry membership certificate and membership card dated 21 July 2017;

   g)an identification card dated 6 July 2009;

   h)an application for registration of a case dated 5 September 2012;

   i)a Court attendance notice dated 23 September 2012;

   j)a NSW police facts sheet dated 23 September 2012;

   k)newspaper article printouts; and

   l)Western Union documents. 

5. The Tribunal acknowledged the documentary evidence provided to the Minister’s Department at [7], and made reference to the newspaper articles and Western Union documents provided to it, at [24] and [32].  The Tribunal discussed the documentary evidence provided to the Minister’s Department with the applicant at hearing, including concerns with the genuineness of documentation obtained from Pakistan in light of independent information that indicated such documentation, including FIRs, can be fraudulently obtained.[29]  The Tribunal went on to consider the documentary evidence provided by the applicant, including at [44], [59] and [62].

   [29] CB 158 [16]-[18]

1. The Tribunal did not fail to consider any material which was centrally important to its decision making process.

Ground 3

1. Ground 3 asserts that the Tribunal failed to comply with s.424A and/or s.424AA of the Migration Act.

2. The applicant has not identified any information which he alleges enlivened the Tribunal’s s.424A obligations. There was no information before the Tribunal which enlivened its obligations under s.424A of the Migration Act, and that this ground accordingly fails to raise an arguable case for the relief sought.

Ground 4

1. Ground 4 alleges that the Tribunal misapplied the definition of significant harm as set out in s.36(2A) of the Migration Act.

2. There is nothing to suggest that the Tribunal misapplied the relevant test of significant harm. 

Conclusion

1. I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 3 March 2017