BQN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1655
•2 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BQN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1655
File number(s): CAG 16 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 2 June 2021 Catchwords: MIGRATION Applicant claims fear of harm in Pakistan to support protection visa application – Applicant had acted for a person in relation to blasphemy charges in Pakistan – the Applicant’s client was exonerated – contrary to the Applicant’s claims the same system that cleared his client would protect him – long delay between arrival in Australia on a student visa and application (almost 3 years later) for a protection visa – protection visa Application refused by Delegate and by Administrative Appeals Tribunal application for Protection (Class XA) – Applicant effectively seeking merits review of decision – no jurisdictional error established application dismissed with costs. Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] 161 ALD 457
ARG15 v Minister for Immigration and Border Protection [2016] 250 FCR 109
BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292
CGA15 v Minister for Home Affairs [2019] FCAFC 46; 268 FCR 362
DOU16 v Minister for Home Affairs [2019] FCAFC 212; 272 FCR 358
Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431
MZACXv Minister for Immigration and Border Protection [2016] FCA 1212; 161 ALD 73
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1; 289 ALR 463
Number of paragraphs: 39 Date of hearing: 2 June 2021 Place: Canberra Solicitor for the Applicant: Self-Represented Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
CAG 16 of 2020 BETWEEN: BQN20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALRS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
2 JUNE 2021
THE COURT ORDERS THAT:
1.The Application filed 17 April 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $6,500.
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
At the conclusion of the hearing on 2nd June 2020, I delivered reasons ex tempore, following which Orders were made dismissing the Application. What follows are those reasons revised from the transcript.[1]
[1] There has been a slight delay in finalising the written reasons because I was on leave for health reasons for a period of time. I also took a short period of personal leave.
The Applicant is a citizen of Pakistan who arrived in Australia on a student visa (Student (Class TU) (Subclass 573) Visa) on 26th November 2013.
On 3rd July 2016, an Application was made by him for a Protection (Class XA) (Subclass 866) visa. On 17th March 2017, a Delegate of the Minister refused that Application.
On 27th March 2017, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the Delegate’s decision. On 19th March 2020, the Tribunal refused the Application for a Protection Visa.
For the reasons that follow, the Application, filed 17th April 2020, which sought a review of the Tribunal’s decision, must be dismissed. There must also follow an Order for costs in the First Respondent’s favour, fixed in the sum of $6500.00.
Background & Claims
As a preliminary observation, it was of some understandable concern to the Tribunal as it is to the Court, why there was the better part of a three year gap between arriving in Australia in November 2013 on a student visa, and July 2016, in seeking a protection visa. If one was as concerned about fear of persecution, and/or any other relevant harm, as the Applicant claimed, the question was not unreasonably put by the Tribunal: why the delay?
Be that as it may, the narrative of the Applicant’s claims, in his own words, are set out in full at paragraph 20 of the Tribunal’s reasons. For convenience, that paragraph is set out below:
20. The applicant told the Tribunal that he completed the Application for a protection visa himself in the English language in 2016. The applicant said the Application was correct and, ‘at this moment’, he did not wish to add or change anything in the Application. In his Application, the applicant stated that:
While working as a lawyer in Sheikhpura we were approached by Mr Amar Zulfiqar who was threatened and tortured by the Islamic radicals as according to them he had said worng things about our prophet Muhammad (PBUH). I went through his police report and discussed his case and determined that Mr Amar was innocent and if we didnt stanfd for his right either the Islamic radicals would kill him or our legal system would sentence him to death. My peers and family members opposed my interest in this case and warned me but I have always stood for what is right and just and I felt that this was my opportunity to protect this innocent man. While I was leading his case I was abused, harassed, my family was traumatised, I was kidnapped and beaten with sticks and kicked several times by the fundamentalist. I approach the local police station after receive threats but they ignored my plea; they infact told me to step down orelse I will end up in a very miserable state. I lodged my first police report against the opponent party on 2nd August 2010 in which I mentioned that I was kidnapped I also gave a very clear description of the offenders but the police wasnt willing to help. Then 10th September 2010 my car was gunned down while I was heading to the chambers. My car was totalled but I escaped with a few minor injuries again I lodged a complaint with police but nothing prevailed. I then gave up hope.
On 18th December 2010 I was kidnapped and then beaten with sticks by 5 men and they also kicked me in my gut and on my face (evidence attached). I was told not to go to the police or else they would punish my old grandparents and family members. I went in exile and started hidding from these extremists. I only used to attend the Court hearing and then disappear immediately. My moved to close by cities as I could leave my old grand parent alone I had to make sure that they were safe. If I would return back to Pakistan the Islamic Radicals would definitely hunt me down and kill me or hand me. They still make threats to my family and inform them that the day I return back to Pakistan that day will be a memorable day for our entire family. We won the case on 19th September 2013 and all hopes to keep me alive were gone; now their only mission was to hunt me down and make an example of me infront of the entire community. My grandparents gathered funds and we applied for student visa which was granted in November 2013; I very secreatively left the country within day of receiving my visa and promised my grandparents never to look back. During my stay in Australia both of my grsandparents passed away (Death Certificate attached) and I wasnt able to visit them in their final dates because it wasnt and still isnt safe for me to visit Pakistan.
I was kidnapped a few times, I was beaten with stick and kicked in the gut and face a few times, my car was gunned down and destroyed. My family received several threats and my younger borther and sister were slapped in the streets while going to school and they were disgraced in the local community.
I seeked help from the local legal system and the police but they very bluntly supported the offenders and told me to step down from the case. I also feared the police as I am sure they would have gifted me to the gangsters.
I seeked help from the police and fellow lawyers in Sheikhpura but all refused to assist. The police told me to back off from the proceeding orelse the offenders will harm me and the police wont be able to assist. The offenders were high ranked religious officials and they controlled the police in Sheikhpura. I lodged complaints in the police station for kidnapping then assault and also when they gunned down my car while I was leaving for the court but the police claimed to have no witnesses. The legal system and the police doesnt help the honest people in Pakistan. In Pakistan money talks.
I moved to the close by cities but didnt move far away as my grand parents were my guardians and they were old. I had to risk my life and stay close to them. The Islamic radical had forwarded my pictures to their entire network all over Pakistan and were hunting me down. No matter where I went in Pakistan they would track me down and then assassinate me. My grand parent were not so well and all this trauma was also taking a toll on their health.
I moved to close by cities and also within my city. Most of my friend refused to shelter me; in fact on 9th July 2013 I had a very narrow escape from my friends house in Sheikhpura as 10 Islamic radical protested outside his house and threatened to burn the house down if my friend didnt open the doors. I escaped from the roof and moved to the last house in the street. I tried my best to protect my family and myself but all this came to a point when I had no other option but to apply for a student visa.
If I was to return back to Pakistan I would definitely be killed/beheaded or hanged. It has been over 2 years since I have left Pakistan and they still visit my house and still threaten my family that they will kill me the day I return back to Pakistan.
The authorities have been bribed and favour the Islamic extremist. I dont have any faith and trust in the legal system of Pakistan as I have experienced this during the bitter times I went through between 2010 to 2013.
I wasnt able to relocate to distant cities as my grand parents were very old and feable. The Islamic radicals had circulated my pictures to their group all over the country and they were hunting me down. One night they forced entry into my friend house where I was staying and I had to escape from their roof top. [errors in original]
The six Grounds of Review, as set out in the Application, filed 20th April 2020, were as follows:
1.That the Tribunal erred in its decision when it failed to consider relevant facts regarding the applicant’s protection visa application.
2.That the Tribunal failed to consider significant harm and a well-founded fear of being persecuted in a country of reference.
3.That the Tribunal failed to consider that risk of persecution is absolute and relates to all areas of the country of reference.
4.That the tribunal noted 96.28% population of Pakistan being Muslim. Of the 96.28%, 85 to 90 percent belong to Sunni faith, however even after the recognition of such majority of Sunni faith population, the Tribunal failed to acknowledge 90% real risk of persecution by such Sunni population.
5.That the tribunal failed to acknowledge influence of such religious extremist over the local and provincial justice system.
6.That the tribunal is forcing me to return to Pakistan and to continue advocacy whereas I cannot do so because wherever I would practice as lawyer, I would easily be recognised by radicals.
The Tribunal’s reasons, at pars. 43 – 98,[2] set out the respective claims of the Applicant in significant detail.
[2] See Court Book (“CB”) at pp.350 – 364.
At par. 99 of its reasons, the Tribunal listed the five discrete claims of the Applicant, albeit in terms different to those set out in the grounds of the Application. Presumably this was because the Tribunal’s focus was primarily on a range of factual matters. For ease of reference, par.99 was in the following terms:
Summary of claims at hearing
99. As a result of the applicant not raising with the Tribunal any additional incidents or threats to those he had already raised at the hearing, the Tribunal put to the applicant a summary of those incidents and treats that he had told the Tribunal at the hearing had occurred in Pakistan, as follows:
a. Being grabbed in the fields and slapped and punched and warned to stay away from the case, possibly in 2010;
b. Also in 2010, when the applicant was going to court, he was attacked and his car was damaged by sticks and guns and it was fired upon;
c. The applicant’s sibling was slapped and asked his whereabouts;
d. The applicant’s family being harassed while the applicant is in Australia; people knocked at his family’s door and asked his whereabouts and have once said that when the applicant returns to Pakistan he will be killed; and
e. The applicant was harassed by telephone, when people called his chambers’ telephone at times during the court case
Consideration & disposition
In my view, claims A to C in par. 99 of the Tribunal’s reasons may be treated together, because they may be taken to arise out of what might be described as one ongoing incident. That incident may be summarised as follows.
The Applicant was a lawyer in Pakistan. He acted for a person in Pakistan who was charged with certain offences under Pakistan’s blasphemy laws. This matter proceeded in the courts in Pakistan between 2010 and 2013. In the result, doubtless to a significant degree because of the Applicant’s care and attention to his case, the Applicant’s client was acquitted.
Many of the Applicant’s claims, in relation to fear of persecution and suffering other harm, arise from his defence in acting for this person who (as noted) was charged and ultimately acquitted. At various places, the Tribunal noted, for example at par. 103, that the Applicant was part of, and actively involved in, the Lawyers’ Movement in Pakistan.
The Tribunal next noted, at pars. 100 – 106, various and significant inconsistencies in the Applicant’s claims and evidence.
Further, in the Tribunal’s view, the Applicant was unable to explain adequately, or at all, the delay between 2013, when he arrived on a student visa, and July 2016, when he applied for a protection visa.[3] Put another way, if someone like the Applicant was so concerned about their safety, such that they seek a protection visa in Australia, why was there was no relevant explanation for why it took the better part of almost three years to seek such a visa.
[3] See the Tribunals’ reasons at pars.110 – 114.
At pars. 115 – 126 of its reasons, the Tribunal dealt with the Applicant’s association with the governing political party in Pakistan. And at pars. 127 – 138, the Tribunal canvassed, amongst other things, the role and provenance of the legal system in Pakistan. I note, in particular, at par. 135, the Tribunal stated in part:
The Tribunal put to the Applicant at the hearing that in his application, he said, “the legal system doesn’t help the honest people in Pakistan”, but the same legal system had acquitted his client of alleged blasphemy.
The Tribunal then noted the role of the police in the matter, and went on (at par. 137) to state (in part):
The Tribunal finds it implausible that the same police force would, on the Applicant’s own evidence, protect his senior lawyer and their client, the now acquitted alleged blasphemer, but not protect the Applicant. Additionally, the Pakistani legal system tried the Applicant’s client on a charge of blasphemy. There was a court case, and the Applicant’s client was acquitted by that legal system.
In both of these instances, in the paragraphs dealing with the Applicant’s association with the governing political party, and secondly, in relation to the legal system and the police, there is significant reference to country information provided by the Department of Foreign Affairs and Trade (“DFAT”).
Next, at pars. 139 to 153, the Tribunal dealt respectively with two different scenarios or circumstances in relation to the Applicant: firstly, if he was to return to Pakistan, and/or secondly, if he was to relocate to another part of Pakistan, different from the area in which he formerly lived. In its consideration of both aspects, or scenarios, the Tribunal again referred extensively to country information provided by DFAT.[4]
[4] See especially pars.143, and 150 – 151 of the Tribunal’s reasons.
I next turn, very summarily, to some cases that provide guidance (and much more) in dealing with the issues raised by this Application.
First, basic principles regarding relocation, in the context of someone claiming to have a well-founded fear of persecution, are set out by Kenny J in the decision of MZACXv Minister for Immigration and Border Protection [2016] FCA 1212 at [24] – [26]. I need not set out here those paragraphs of her Honour’s reasons.
In AHK16 v Minister for Immigration and Border Protection (2018) 161 ALD 457 at [3], there was a discussion by the Full Federal Court of how a Court should assess the nature and risk of harm, again in the context of relocation. At [3] in AHK16, the Full Court said (emphasis added):
The assessment of whether a person can return to one or more parts of her or his country of nationality is undertaken in relation to the causal aspect of the definition of refugee in Art 1A of the Refugees Convention: namely, whether a person is outside her or his country of nationality owing to (in the sense of because of) a well-founded fear of persecution for a Convention reason: see generally SZATV at 25-26 [19], referring to the reasoning of Lord Bingham in Januzi v Secretary of State for Home Department 2 AC 426. As the extract from Januzi at [19] of SZATV, and the other authorities to which we refer establish, there are two components to this assessment. The first concerns an assessment of the risk of harm, and the level of harm, which a person might face in those parts of her or his country to which she or he might be expected to return; and the second concerns whether it is reasonable, in the sense of practicable, to expect a person to return to a particular place if it has been assessed as one where she or he does not have a well-founded fear of persecution.
Secondly, there are a number of cases that deal with issues of credibility. Plainly, this was one of the issues that the Tribunal raised and which the Applicant here challenges. It is sufficient for me to note (without setting out the passages referred to), amongst many of these decisions, the Full Federal Court’s judgment in BNH16 v Minister for Immigration and Border Protection [2017] FCAFC 109 at [36] and [44] – [45].
Thirdly, in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [25] and [27] there was a discussion of the importance to ensure that there is a “fair reading of the reasons read as a whole and without an eye keenly attuned to the perception of error” that come under the scrutiny of the Court. At [22] – [26] in CGA15, the Court also observed that it was not sufficient for a challenge to the Tribunal’s reasons simply because there was disagreement by the Applicant with the Tribunal’s reasons, and that what matters “is the actual level of risk in any particular place.”
Fourthly, in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [6], [12] and [15] (Rares J), and at [83] – [85] (McKerracher J; Reeves J agreeing, at [112]), the Full Court noted that illogicality will not amount to jurisdictional error in every case and further, that emphatic judicial disagreement with a decision-maker’s reasoning is not a sufficient basis to found jurisdictional error.
Fifthly, as an additional point of reference to those already given, in DOU16 v Minister for Home Affairs [2019] FCAFC 212 at [34] – [40] the Full Federal Court also considered the issue of reasons that were said to be either illogical or unreasonable.
Sixthly, in ARG15 v Minister for Immigration and Border Protection [2016] 250 FCR 109 at [82] – [83], the Full Court again noted the importance or significance that a general claim regarding adverse credibility findings is a difficult challenge to sustain, primarily for the same reasons given in DOU16.[5]
[5] See also the Full Court’s comments in ARG15, at [56] – [76], regarding contentions that the Tribunal failed to consider certain country information. “Failure to consider”, as noted in these reasons, featured regularly in the Applicant’s Grounds of Review in the current Application.
Finally in relation to relevant authorities, in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [39], the Full Federal Court dealt at a little length with the proper approach by a Court in assessing a review application that challenged whether or not there had been proper and appropriate consideration of the assessment of risk.
Against the background of (a) the very brief summary of the Tribunal’s decision above, and (b) the principles that I have summarised very briefly, with even greater brevity, I set out the reasons more particularly for the Court’s determination to refuse the current Application.
I noted at the outset of the hearing, and it was referred to briefly by Ms Stone on behalf of the First Respondent Minister, that the Court’s responsibilities in review Applications of the kind currently before the Court are very heavily circumscribed. This is to say that it is not the Court’s function to review the merits of the Tribunal’s decision. There are almost innumerable references that could, but need not, be given in support of this basic proposition prohibiting merits review. The Court’s focus and function must be on the legality of the process and of the reasoning, not the conclusion or the merits of the decision. In this regard, I note in particular the comments by the Full Federal Court in Minister for Immigration and Border Protection v MZYTS (2015) 230 FCR 431 at [31] – [50] in the course of which, the Court noted the following critical matters.
At [31], the Full Court observed (emphasis added):
Before both the Federal Magistrates Court and this Court the asserted error in the Tribunal’s decision was often described as a “failure to consider more recent information”. That description might suggest as a corollary some kind of freestanding legal obligation on the Tribunal to consider the most recent information. In our opinion, while those descriptions may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act.
Then at [36], the Court stated (emphasis added):[6]
… to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
[6] See also the Court’s comments at [50] regarding the necessity for the Tribunal to ensure that they engage, and be seen to engage, in a process “of weighing evidence and preferring some over the other.”
Simply for completeness, I note too the Court’s comments at [53] and [54], which are relevant to a number of the Grounds propounded by the Applicant here:
[53] It is uncontroversial to say that, before a court on judicial review of these matters, an applicant assumes the burden of persuading the court to draw the inference of a failure to deal with a claim or consider a matter the tribunal was obliged to consider, or make the finding of jurisdictional error, for which she or he contends…
[54] We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal…
In my view, the Applicant’s Grounds of Review are significantly generalised and unparticularised. They are generalised complaints and claims by assertion. In my view, they come more appropriately within the scope of decisions noted earlier in these reasons regarding fundamental disagreement with the decision. However, in my view the process of reasoning, made clear over the 163 paragraphs of the Tribunal’s careful reasons, and the weighing and assessment of the Applicant’s claims, are clear.
In my view, the first three grounds in the application, which refer to alleged failures to consider either relevant facts, well-founded fear of being persecuted, or failure to consider the risk of persecution, are not made out. The matters complained of were, in fact, considered extensively by the Tribunal. In the light of the cases to which I have referred, no relevant procedural or process error has been shown. Read fairly, the Tribunal’s extensive reasons properly, accurately, and in detail consider each of the claims raised by the Applicant.
In relation to grounds 4, 5 and 6 in the Application, they too are generalised complaints. They concern, for example, the Applicant being forced to return to Pakistan and the risks he will face as a lawyer, the alleged failure of the provisional justice system, and certain percentages that are referred to in relation to certain parts of the population. Each of these are unparticularised. There is the further alleged failure by the Tribunal to consider certain information. To repeat, read fairly, in my view, the Tribunal’s reasons very thoroughly canvass each of the grounds of the Applicant’s claims. Plainly, the Applicant disagrees with the Tribunal’s decision. Emphatic disagreement, without more, does not establish any error of the kind that would warrant this Court to interfere with the Tribunal’s decision.
In my view, no relevant legal error as to process, or reasoning, has been identified or otherwise established by the Applicant.
Otherwise, and in addition to the reasons already stated, I also accept and adopt the Minister’s submissions.
Accordingly, the Application to this Court must be dismissed with an Order for costs as sought by the First Respondent, fixed in the sum of $6500.00.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 23 July 2021
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