BTM15 v Minister for Immigration
[2016] FCCA 1002
•28 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTM15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1002 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Cases cited: SZBEL v Minister for Immigration (2006) 231 ALR 592 |
| First Applicant: | BTM15 |
| Second Applicant: | BTN15 |
| Third Applicant: | BTO15 |
| Fourth Applicant: | BTP15 |
| Fifth Applicant: | BTQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2410 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Mr D McLaren of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2410 of 2015
| BTM15 |
First Applicant
| BTN15 |
Second Applicant
| BTO15 |
Third Applicant
| BTP15 |
Fourth Applicant
| BTQ15 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 August 2015. The Tribunal affirmed a decision of a delegate to the Minister not to grant the applicants protection visas. The applicants are citizens of Pakistan. They are a husband and wife and their three children. The principal applicant is the husband (the applicant).
The applicants are from Karachi in Sindh Province. They applied for visitor visas in Pakistan on 25 June 2013. The visas were granted on 1 October 2013 and the applicants arrived in Australia on those visas on 3 November 2013. The applicants applied to the Minister’s Department for protection visas on 25 November 2013.
The applicant essentially claimed that he operated a successful business in Karachi and as a result he was the subject of extortion and robberies. His son was kidnapped on one occasion and there were attempted kidnappings of his sons. He also claimed that his car was shot at on two occasions. At the interview with the Minister’s delegate the applicant also claimed that his uncle was killed by the Muttahida Quami Movement (MQM). The Minister’s delegate refused to grant the visas on 21 August 2014. The delegate accepted that the applicant had experienced extortion demands, his car was shot at, his uncle killed and his son kidnapped but did not accept the robberies or that his uncle was killed by the MQM.
The delegate also did not accept that the applicant’s claims were claims arising under the Refugees Convention. Although the delegate accepted that there was a real risk that the applicant would suffer significant harm as a result of the operation of a successful retail cash business, the delegate considered that he and his family could relocate to another part of Pakistan where they could reside safely. The applicants were dissatisfied with the delegate’s decision and sought review before the Tribunal.
The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing. The applicant attended and was assisted by a registered migration agent. The hearing took place on 9 June 2015. It became apparent at the hearing that the Tribunal took a more jaundiced view of the applicant’s claims than the delegate. The Tribunal rejected as false all of the applicant’s claims of past harm. Having rejected the factual basis for the applicant’s claims under the Refugees Convention the Tribunal also rejected the claim to complementary protection. The issue of relocation did not arise for the Tribunal.
These proceedings commenced with a show cause application filed on 15 October 2015. It appears that on first filing on that day the application was missing a page and it was filed a second time. The applicants continue to rely upon that application. There are three grounds in the application:
1. The Tribunal error by failing to take into account UNHCR report “Beyond Proof” and reach to wrong conclusion in respect of the applicant evidence.
PARTICULARS
Paragraph 36 of the subject decision.
2. The Tribunal error by not investigating documentary evidence provided to the Tribunal in support of his claim for protection.
PARTICULARS
Paragraph 38 of the subject decision. The Tribunal assumed that the fraudulent documents are freely available in Pakistan. Tribunal failed to put to the applicant the reasons of their assumption. Further the Tribunal could have investigated thoroughly the First Information report provided by the applicant.
3. The Tribunal failed to investigate claim of persecution in the hands of MQM.
PARTICULARS
Paragraph 49 of the subject decision.
(errors in original)
The application is supported by an affidavit filed with it, which I received.
I have before me as evidence the court book filed on 16 October 2015.
The parties were provided with the opportunity to file written submissions pursuant to procedural orders made by a registrar on 15 October 2015. Neither the applicants nor the Minister took up that opportunity. I invited oral submissions from the applicant and the Minister’s solicitor today. The applicant was not able to advance in any meaningful way the first ground of review. At [36] the Tribunal stated[1]:
The Tribunal has had regard to all of the evidence, including the documentary and oral evidence. The Tribunal has also had regard to the submissions regarding the applicant’s memory problems as well as his claims that during the interview because he was fasting for Ramadan and this affected his memory and recollection of events. The representative has submitted that although the Tribunal expressed concerns about the applicant’s inability to recall specific dates of significant events, this is not an indication of the credibility of the applicant. The representative refers to a UNHCR report, “Beyond Proof” and submits that the report concludes that an inability to remember dates is not an indication of credibility and a discrepancy between dates recalled is simply a matter for memory. It is further submitted that a further factor is the “heightened emotion” involved in the events that the applicant speaks of and his experiences may have an associated level of trauma and the UNHCR has found that high levels of emotion and trauma can affect and impair a person’s ability or memory.
[1] Court Book (CB) 308
In my opinion that paragraph on its face provides a complete answer to the first ground. Plainly, the UNHCR report was taken into account by the Tribunal.
The second ground was a matter of major concern for the applicant. The contention is either that the Tribunal should have investigated the corroborative documents provided to the Tribunal or that it should at least have considered them. I accept the Minister’s submission that there was no obvious inquiry that could have been made easily by the Tribunal which might have had a determinative impact. The Tribunal proceeded on the basis that because it had rejected the applicants’ factual claims on other bases and that fraudulent documentation was readily available in Pakistan most of the documents should not be accepted as genuine. The question of the availability of fraudulent documentation in Pakistan was discussed with the applicant at the Tribunal hearing at [38][2]:
It follows that the Tribunal does not accept that the documents that the applicant has provided are genuine and/or that they contain truthful information. As discussed with the applicant during the hearing, fraudulent documentation is readily available and easy to obtain in Pakistan[3]. The Tribunal accepts that the documents in relation to the applicant’s ownership of property is genuine, but does not accept the First Information Report relating to the robbery which was made some four months after the robbery purportedly occurred is genuine. The document, dated August 2013, is also inconsistent with aspects of the applicant’s other evidence and as discussed below, the applicant appeared confused about the nature of some of the details in the document. The Tribunal is not satisfied, having considered all of that evidence, that the applicant’s son was the victim of a kidnapping in April 2013 or that a ransom was paid for his release. Nor does the Tribunal accept that the applicant’s car was shot at on two occasions or that there were attempted abductions or extortion attempts. Nor does the Tribunal accept that there was a robbery at the applicant’s shop in December 2013, reported in April 2014. The Tribunal has had regard to the submissions in relation to FIR’s and the difficulties inherent in the system of FIR’s, but does not accept that the evidence cited establishes that the police would not take details of a robbery until four months after the robbery occurred. The Tribunal does not accept, therefore, that the FIR or the document, dated August 2013, are genuine documents. The Tribunal is drawn to the conclusion that they have been manufactured in an attempt to establish that the applicant has been targeted in Pakistan.
[2] CB 308
[3] See report by the Department of Foreign Affairs and Trade which states, in its advice of August 2009, that the prevalence of false documents in Pakistan is high. The Immigration and Refugee Board of Canada (IRBC) also noted in November 2010 that there is a high incidence of fraudulent documents in Pakistan.
While this case might be seen as a “poisoned well” case in which no further consideration needed to be given to the documents presented, [38] does record that the Tribunal considered the documents on their face and having regard to their contents. No arguable case of error is disclosed in the second ground.
The third ground asserts that the Tribunal failed to investigate the applicants’ claim of persecution at the hands of MQM. The particulars refer to [49] of the Tribunal’s reasons[4]:
The delegate also considered whether the applicant would suffer serious harm because he is a Mohajir and is imputed with an anti-MQM political opinion. The Tribunal considers it evident that this issue was raised in the context of relocation, which the Tribunal considers it unnecessary to consider given the findings that there is not a real chance that the applicants will suffer serious harm in Pakistan. However, for the sake of completeness, the Tribunal has considered this issue. The Tribunal has not accepted the applicant’s claims that his uncle was killed by the MQM and also has not accepted that the applicant somehow learned after his arrival in Australia that the MQM was responsible for the kidnappings, extortion, robberies and attempted abductions. The Tribunal does not accept that there is any evidence establishing that there is a real chance that the applicant will be sought by the MQM due to his imputed political opinion. The Tribunal has also not accepted that there is a real chance that the applicant will be harmed by the MQM or targeted because he is a wealthy businessman.
[4] CB 311
The Tribunal in that paragraph stated two things. The first was that the MQM claim did not need to be considered because it only arose in the context of relocation which was an issue for the delegate but not the Tribunal. Secondly, and for completeness, the Tribunal did consider the claim. It is apparent, therefore, that the third ground is not arguable.
In addition to the grounds raised by the applicant, I have considered whether an argument might be raised pursuant to s.425 of the Migration Act 1958 (Cth), having regard to the decision of the High Court in SZBEL v Minister for Immigration[5] along the lines that the hearing opportunity was not a fair one given the substantial change in approach as between the delegate and the Tribunal. The issue here would be whether the dispositive issues before the Tribunal were properly raised with the applicants at the Tribunal hearing.
[5] (2006) 231 ALR 592
The Minister’s solicitor took me to [16] of the Tribunal’s decision record[6]:
The applicants appeared before the Tribunal on 9 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicants were represented in relation to the review by their registered migration agent. The applicants were advised during the hearing that although the delegate accepted several of their claims that the Tribunal may reach a different conclusion and make different findings.
[6] CB 301
I accept on the basis of that paragraph that an SZBEL type argument does not arise in this case.
I conclude that the applicants have not demonstrated an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application by dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. The costs order will only be against the adult applicants.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 5 May 2016
1
3