BTM16 v Minister for Immigration
[2018] FCCA 3392
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTM16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3392 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the applicant “information” for the purposes of s.424A and s.424AA of the Migration Act 1958 (Cth) – no such “information” – otherwise grounds not made out – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 424A, 424AA Migration Regulations 1994 (Cth) |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | BTM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1811 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 November 2017 |
| Date of Last Submission: Date Reserved | 22 November 2017 13 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms M. Donald |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 13 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1811 of 2016
| BTM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Pakistan aged 26 years, having been born on 1 January 1992.
By Application filed in this Court on 13 July 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 28 November 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia on 29 December 2012 on a Business (Short Stay) (Subclass 456) visa (Business visa) valid until 12 January 2013. The Applicant lodged the Protection visa application on 9 January 2013.
Claims for Protection
The Applicant made the following claims in his Protection visa application:
a)He belongs to the minority Shi'a Hazara sect of Muslims.
b)His father was the area secretary of the Shi'a Muslim religious political organisation the TNFJ (Tehrik-e-Nifaz-e-Fiqh-e-Jafaria) and was killed when a bomber attacked a Shi'a procession held to mark Ashura.
c)His family are landlords of their area, and their main source of income is from real estate business.
d)Many of his family members, including his two brothers, have been killed by Sunni Muslim terrorists affiliated with the Taliban.
e)The radical group Sipah-e-Sahaba demanded five million rupees to build a Sunni School in his local area and threatened to kill his family members.
f)He was kidnapped and tortured in their custody, and his brother paid five lakh rupees for his release.
g)They threatened to kill him and asked him to convert to Sunni Islam. He was blindfolded so he did what they asked him to do. He was terrified and didn't think he would come out alive, and still has nightmares about the incident.
h)If he returns to Pakistan his life would be in great danger. He has lost half of his family members just for being Shi'a Hazara sect. He has no place to hide in Pakistan and is the victim of sectarian violence.
i)He believes that the Taliban will harm him as they have tried to kill him and his brother, and demanded money from them but the Applicant left the country. They have also killed his brothers and his father.
j)The Taliban have accused him of having links with Iran and think that he is helping the Shi'a minority in his area financially.
k)His family have already moved to another place and are hiding for their lives.
l)The authorities in Pakistan cannot protect him as the majority of the police force are of the Sunni sect and corrupt. They have already tortured the Applicant and he had to pay money to get released by them, despite having done nothing wrong.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 30 May 2014. He gave further details of his claims at the interview and asserted that he was an ethnic Punjabi and not of Hazara ethnicity as claimed in his Protection visa application: see [4(a)] above. The Delegate recorded the claims made by the Applicant at the interview in his Decision Record, as follows:
• The applicant attended a Shi'a Imambargah called Saudia Mosambel on Multan Road in Lahore.
• He is an ethnic Punjabi, not ethnic Hazara (as claimed in his written statement).
• The applicant lived with his mother and siblings in Lahore.
• Two of the applicant's brothers passed away over 10 to 15 years ago, and following his father's death. He does not have any proof of their deaths such as death certificates.
• Another brother - Muhammad Adnan arrived in Australia (on a business visa) together with the applicant in December 2012 and also applied for PV. He is currently living in Mission Beach.
• Following the applicant's father's death in a bomb blast, the applicant and his family started a real estate business.
• The applicant was around 11 years old when his father died in a bomb blast during an Ashura celebration.
• Sipah-e-Sahaba demanded 50 Lakh Rupees from the applicant as they thought he was a landlord.
• The applicant has been kidnapped by the Taliban (and / or Sipah e Sahaba) before.
• The applicant's father was the Secretary of a Shi'a group named TNFJ, organising meetings and "everything" for Shi 'a people. He does not have any evidence of his father's position in the group.
• The applicant's brother's deaths were not investigated by the Police.
• The Sipah-e-Sahaba demanded that the applicant and his family provide the 50 Lakhs Rupee otherwise they would kill his whole family.
• The applicant's family used to be a wealthy family.
In the result, the Delegate did not find the Applicant to be a witness of truth. Rather, the Delegate found that the information provided by the Applicant at the interview in relation to his material claims was vague and inconsistent with that provided in his written statement and a number of claims made by him at interview were also highly implausible. Further, the Applicant admitted to the Delegate at the interview that he had provided false information and false supporting documents in his application for the Business visa.
The Delegate came to the view that he was not satisfied that Australia had protection obligations to him under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and accordingly refused to grant to the Applicant a protection visa.
Decision of Tribunal
The Applicant applied to the Tribunal (then the Refugee Review Tribunal) on 24 December 2014 for merits review of the Delegate’s decision and gave a copy of the Decision Record of the Delegate to the Tribunal at that time.
On 2 June 2016 the Applicant appeared before the Tribunal by video link to give evidence and present arguments with the assistance of an interpreter in the Urdu and English languages.
The Tribunal dealt with the Applicant’s original claim of Hazara ethnicity at [24] and [53] of its Decision Record and recorded that the Applicant stated at the Tribunal hearing, “…that he had not faced any difficulties in Pakistan on the basis of his claimed Hazara ethnic extraction”. The Tribunal stated that the Applicant “appeared to equate Hazara with a physical place”. Ultimately, at [53] the Tribunal did “not accept on its assessment of the overall evidence that the applicant identifies as a Hazara or that he fears harm on that basis” and recorded that it believed “that the applicant has made this claim in order to strengthen his Protection visa application”. The Tribunal also rejected his claim that he would be imputed to be of Hazara ethnic extraction should he return to Pakistan.
At [30] of its Decision Record the Tribunal recorded that the Applicant’s description of his religious practices in both Pakistan and Australia were very brief and lacking in any significant detail and that he had told the Tribunal that he had not had any difficulties in practising his Shia faith in Pakistan.
The Tribunal at [42] had regard to country information which indicated that most Pakistani people were able to practice their religion freely. At [58] the Tribunal concluded as follows:
[58] The Tribunal has considered the applicant's claims and the totality of his evidence and its assessment of his credibility. The Tribunal for the reasons that have been considered and discussed does not accept that the applicant is a credible witness. The Tribunal after considering the applicant's claims and the totality of the evidence and its assessment of the applicant's credibility and available and relevant country information does not accept that the applicant has a well-founded fear of harm on the basis of his Shia Muslim faith. The Tribunal does not accept on its assessment of the applicant's claims and his evidence and its assessment of his credibility and its assessment of country information that has been considered and discussed that the applicant faces a real chance of serious harm on the basis of his religion or his claimed Hazara ethnic extraction should he return to Pakistan either now or in the reasonably foreseeable future. The Tribunal also does not accept on its assessment of the totality of the evidence that the applicant would face a real chance of serious harm on the basis that he could be imputed to be of Hazara extraction should he return to Pakistan either now or in the reasonably foreseeable future.
From [58] – [63] of its Decision Record the Tribunal rejected the totality of the Applicant’s claims of past harm, including his claim to have been kidnapped and to have had members of his family killed, and in the result found that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and accordingly affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are as follows:
1. 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 consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Pakistan.
3.The Tribunal did not give to the applicant before the independent information that it had about Pakistan, The Tribunal used this information. This was against section 424A of the Migration Act 1958.
4.The Tribunal failed to consider an integer of the Applicant's claim, in failing to consider whether or not a Shia Hazara (regardless of their specific claims of affiliation or past persecution) in Pakistan was at risk of harm from Talibans and Sunni, and not able to access effective protection.
Consideration
Ground 1
This Ground contends that the Tribunal failed to comply with ss.424A and 424AA of the Act “to give to the Applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision” of the Delegate under review.
However, the Ground is expressed in general terms and is effectively unparticularised and does not attempt to identify the “information” which it is asserted was not given to him by the Tribunal.
Further, the lawyers for the Minister have been unable to identify any such “information”, and I have been unable to discern any “information” which was required to be, but was not, given to the Applicant by the Tribunal.
Accordingly Ground 1 is not made out.
Ground 2
This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.
The Tribunal at [10] of its Decision Record summarised the complementary protection criterion, and at [63] gave its grounds for rejecting the Applicant’s claim that he would suffer significant harm if he returned to Pakistan. In that paragraph the Tribunal expressly stated that it had “considered the definition of significant harm contained in the Act”, which I infer must be a reference to the definition of harm found in s.5 and s.36(2A) of the Act. The Tribunal then proceeded to expressly consider the types of significant harm described in s.36(2A)(a) – (e).
Further, the Tribunal was entitled when it came to deal with the complementary protection criterion, to refer to its previous findings of fact concerning claims to protection under the Refugees Convention: SZTDT v Minister for Immigration and Border Protection [2016] FCA 631 at [16] and [23] per Rares J agreeing with Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]- [57]. As Marshall J said in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] as follows:
[31] A fair reading of the Tribunal’s reasons for decision showed that it did not misapply or misunderstand the test for complementary protection claims. It applied the “real chance” test in determining whether there was a real risk that the appellant would suffer significant harm if returned to Nigeria. The finding of the Tribunal on its assessment of “real risk” is expressly linked to its findings on “real chance”. The Tribunal was entitled to rely on its finding that there was no real chance of the relevant harm alleged for Convention purposes in assessing whether there was a real chance of significant harm for complementary protection purposes, when the same essential claims and facts were being relied on in each aspect of the appellant’s case before the Tribunal…
Otherwise, this Ground appears to invoke a merits review which is not available in this Court.
Accordingly, Ground 2 is not made out.
Ground 3
The short answer to this Ground is that country information is excepted and exempted from the requirements of s.424A(1) by force of s.424A(3)(a) of the Act, and thus this Ground is not made out. In this instance the DFAT reports considered by the Tribunal were of a general nature and dealt with the general situation in Bangladesh, and were not specifically about the Applicant, and thus s.424A(3)(a) applied.
Ground 4
I have already noted at [11] above the Tribunal’s consideration and rejection of the Applicant’s claim to fear harm because of his Hazara ethnicity.
Having found that that the Applicant was not of Hazara ethnicity and would not be imputed to be of Hazara ethnicity the Tribunal then went on to determine whether the Applicant would face harm on the basis of his Shia Muslim faith, or was at risk of harm from Sunni Muslim extremist groups and the Taliban. The Tribunal had expressly recognised that claim at [9] and [52] of its Decision Record. At [40] – [46] of its Decision Record the Tribunal had regard to DFAT country information concerning the risk of harm in Pakistan to people of Shia Muslim faith. At [46] the Tribunal recorded that DFAT country information indicated that Pakistani authorities were broadly willing to protect Shia communities and at [57] that there was a low risk of sectarian violence for most Shias in Pakistan.
Then at [59] of its Decision Record the Tribunal recorded that it did not accept the Applicant’s claims that he had been kidnapped by the Taliban or other militants and physically harmed or that he was forced to convert to the Sunni Muslim faith and further did “not accept for the same reasons that the applicant would face a real chance of serious harm on the basis of his claims that he had been subject to extortion in attempts or is the target of extremist militants in Pakistan should he be returned to Pakistan either now or in the reasonably foreseeable future”.
Finally, at [62] of its Decision Record the Tribunal found as follows:
[62]The Tribunal after considering the applicant's claims both individually and cumulatively does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm for a convention based reason if he returned to Pakistan either now or in the reasonably foreseeable future.
In light of these findings and the Applicant’s own evidence that he had not had any difficulties with practising his faith in Pakistan and the comprehensive rejection of his claims, the Tribunal did not fail to consider an integer of the Applicant’s claims as asserted by this Ground, which is not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and thus the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 28 November 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Standing
4
3