BXU17 v Minister for Immigration
[2019] FCCA 3326
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXU17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3326 |
| Catchwords: MIGRATION – Protection visa – whether Tribunal failed to consider integer of claim – whether Pakistani applicant of Baloch ethnicity is at real risk of significant harm – where applicant provides Tribunal with considerable country information about general risk of violence in Balochistan – where Tribunal considers country information focused on nature of risks faced by political actors and journalists – whether Tribunal failed to consider real risk of significant harm to applicant as a non-targeted civilian – where applicant does not explicitly raise claim – whether claim clearly arises from country information – where country information clearly demonstrates generalised risk of harm to Balochs – where applicant is Baloch – where risk was a substantial issue – where issue was not considered by Tribunal – where consideration is warranted – failure to accord procedural fairness – jurisdictional error – Tribunal decision quashed and remitted for merits review upon consideration according to law. |
| Legislation: Migration Act 1958 (Cth), ss.5, 65, 414, 474, 476 |
| Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 |
| Applicant: | BXU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 911 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 12 November 2019 |
| Date of Last Submission: | 12 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Barrington |
| Solicitor-Advocate for the Respondents: | Mr D. Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave, now for then to file and serve the amended application dated 19 September 2019.
An order in the nature of a writ of certiorari be issued to quash the decision of the second respondent made on 12 April 2017.
An order in the nature of a writ of mandamus be issued to remit the matter to the second respondent (differently constituted) to be reconsidered according to law.
The first respondent pay the costs of the applicant fixed at $7,464.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 911 of 2017
| BXU17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 19 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 12 April 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, I have concluded that the application should be allowed. In summary, I have concluded that the Tribunal failed to consider a claim that was clearly articulated and apparent on the face of the country information that was before it.
Background
By his written submission, counsel for the applicant accepted the accuracy of the applicant’s claims and the Tribunal’s findings as contained in the Minister’s submissions. The matters in those submissions are substantially reproduced below.
The applicant is a 40-year-old Pakistani national who visited Australia for three days when returning to Pakistan (via the United Kingdom) from studying and working in New Zealand in late November 2013. Some eight weeks later, on 17 January 2014, he returned to Australia as the holder of a visitor visa. Then, a fortnight later, on 5 February 2014, he made application for a Protection (Class XA) visa (visa).
The applicant is married with a young daughter who was born in, and is a citizen of, the United States; his wife held USA and UK visas that allowed her to enter and depart those countries for a five-year period. At the time of the Tribunal hearing, the applicant’s wife and daughter were living in Chicago with his wife’s aunt.
The applicant’s father, who owns fruit export and property businesses, is a member of the Baluchistan Chamber of Commerce.
The applicant is a Sunni Muslim of Baloch ethnicity, who holds a BA from the University of Baluchistan and a Master’s degree in IT, which he obtained in Pakistan. From 2006 to 2008, he studied for, and obtained, an MBA in the UK.
The applicant worked as domestic and international flight crew for Pakistan International Airlines from 2004 to 2006, and again, from late 2008 until the end of 2009. At this time, he was based in Karachi. Later, having passed an examination, he undertook 6-7 months’ training to work as an air traffic controller in Karachi from 2010 to 2011. Aircrew and air traffic controller alike required high-level security clearance.
The applicant then left to study in New Zealand, completing a post-graduate diploma in IT from 2011 to 2012. He worked for Anglican Action, on behalf of the Department of Corrections, in New Zealand during 2013 as a supervisor in a young offenders’ programme.
On 12 March 2015, the applicant attended an interview with a delegate of the Minister. On 21 August 2015, the delegate found that he was not a credible witness, and refused to grant the visa.
On 27 August 2015, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On 20 December 2016, the applicant appeared at a Tribunal hearing to give evidence and present arguments and was assisted by an Urdu interpreter. The Tribunal affirmed the delegate decision on 12 April 2017, and provided reasons for that decision (Reasons).
Claims to protection
The Tribunal at [24] summarised the applicant’s claims as made in his Protection visa application:
a)Mama Qadeer is a Baloch rights activist, who, like the applicant is from the Baluchistan province of Pakistan. Mama Qadeer had led a protest march to bring attention to the killing of his son, who was an official of the Baloch Republican Party;
b)he had visited Mama Qadeer when he staged a protest outside the Karachi Press Club. The applicant had sat next to Mama Qadeer and had spoken with him for half an hour to convey his sympathies as a Baloch person about the death of Qadeer’s son;
c)the applicant claimed that had been abducted by three men in December 2013 in his home district, who said they were from ‘the agency’. He claimed that he had been questioned for 8 days about his connections with Mama Qadeer and other Balochis by the Pakistan security forces. The applicant also claimed that when the security forces found out about his visit to the UK, they became suspicious because the exiled Baloch King (the Khan of Kalat) and other Baloch separatist leaders resided there, and he was questioned about his relationships with them;
d)during his abduction, he was interrogated and tortured, and the men demanded to know for whom he was working, putting to him that he was working for the Research and Analysis Wing of the Indian foreign intelligence service (RAW), the CIA or Mossad;
e)he was eventually released after he agreed to work for them by propagating their views amongst the Baloch elders, in particular that the Pakistani army was doing good things for the Baloch people, and that the Baloch people should support them accordingly.
The applicant told the Tribunal that he feared the Pakistan Inter-Services Intelligence (ISI) or the Pakistani Military Intelligence would kill him upon his return to Pakistan by reason of his having failed to fulfil his agreement to propagate their views among Baloch elders.
The applicant provided the Tribunal with several news reports about the killing of a Pakistani activist, Sabeen Mahmud, who had hosted an event at her café in Karachi, at which Mama Qadeer had spoken At the event, Qadeer highlighted the issue of missing persons in Baluchistan, and how a Karachi journalist, Hamid Kir, had blamed “ISI within the ISI” for orchestrating an attack on him in April 2014 because they were unhappy about his having reported on Mama Qadeer’s march: [34].
Tribunal’s decision
The Tribunal noted that the applicant had no prior involvement in Baluchistan politics or human rights issues. Nonetheless, it gave the applicant the benefit of the doubt as to his account of having visited Mama Qadeer to show his support and having spoken to him: [37].
However, the Tribunal did not accept that, weeks later, the applicant had been taken by intelligence agents or that he had been interrogated because he had met with Mama Qadeer. It found that Qadeer’s protest march had attracted wide interest and that many people appeared to have spoken to him. Furthermore, the applicant and his family had no prior involvement with the separatist cause. The Tribunal found that there was no apparent reason why the intelligence services should have kidnapped the applicant and interrogated him in Baluchistan merely because he had spoken to Mama Qadeer outside the Karachi Press Club: [38].
The Tribunal found that, as the applicant’s father was a wealthy elder, had his son had been missing for 8 days, his father would have taken significant action, including approaching the government at a high level to locate him. The applicant had been unable to provide a detailed account of what actions his father had taken to find him: [38].
The Tribunal did not accept that the applicant was detained, interrogated, or mistreated. It noted that the applicant had not detailed the nature of the physical mistreatment that he claimed in his visa application and interview with the delegate. The Tribunal did not accept that the applicant would have omitted to mention significant physical mistreatment in his Protection visa application had it occurred, and did not accept that the delegate had denied the applicant an opportunity to present his evidence about the mistreatment suffered: [39].
As the Tribunal did not accept that he had been detained or that ISI had any interest in him, it also did not accept that ISI wanted the applicant to work for them. It found that he had not lived in Baluchistan since about 2006, and therefore was not in a position to be useful to them: [40].
The Tribunal did not accept that ISI had gone to the house of the applicant’s father looking for the applicant in January 2016, or that he was of any interest to them at that time. The Tribunal found it implausible that ISI would not have taken steps to stop him flying out of Karachi had he been a person of interest to them: [41].
The Tribunal also reasoned that, had the applicant’s brother been taken by ISI as claimed, the applicant would have been able to provide detailed evidence of the steps taken by his father to obtain his brother’s release: [42].
The Tribunal accepted that the applicant had met the Khan of Kalat in 2003, but that this had been before the Khan had been involved in any separatist activities. No harm had been claimed arising from such a past association, and no evidence was provided of any recent contact with the Khan: [43].
The Tribunal noted that no evidence had been provided that the applicant was the cousin of Sadar Asif Mengal, but accepted that the two may have been from the same tribe and, in that sense, connected. The Tribunal also found there was no evidence that Sadar Asif Mengal or his son had been targeted by intelligence agents, or for any reason associated with Baloch politics or human rights issues. The Tribunal did not accept that the attack on Sadar Asif Mengal and his son had any relevance to the applicant: [44]. However, it accepted that Sabeen Mahmud and Hamid Mir had some limited association with Mama Qadeer, and they were both active campaigners and reporters on human rights abuses and killings in Baluchistan. It accepted that their attackers might have been associated with the intelligence or security forces. However, the Tribunal did not accept that their killings were indicative of a risk to the applicant, who did not have any role as an advocate or campaigner for human rights in Baluchistan: [45].
The Tribunal considered the applicant’s claim that he had been discriminated against by work colleagues in his air traffic controller’s role, which led to his leaving that role. It was found by the Tribunal not to arise to a level of serious or significant harm: [46]. Similarly, the applicant’s stress-related mental issues, including poor concentration and possible depression, were found not to have arisen from mistreatment in Pakistan (it having been found not to have occurred). The Tribunal found that the applicant’s mental health issues would not give rise to serious or significant harm on return to Pakistan: [47].
The Tribunal ultimately found that the applicant was not a person to whom Australia owed complementary protection obligations and affirmed the decision to refuse to grant the visa: [52].
Procedural history
On 4 May 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons but adducing little further evidence in support of the application for judicial review. The applicant deposed as follows:
Tribunal accepts that Khan of Kalat has not involved in political activities that he himself is living on asylum in UK
Tribunal accepts that Sardar Asif Mengal was shot and his son killed – Sardar Asif is my cousin If he and his family is not safe then how will I be safe in Baluchistan
By a Response filed on 10 May 2017, the Minister opposed the application on the stated basis that the Tribunal’s decision was not affected by jurisdictional error.
On 22 November 2017, orders were made, by consent, listing the matter for final hearing. Orders were made affording the applicant opportunities to file an amended application, affidavits and submissions, however, those opportunities were not taken in a timely way.
On 19 September 2019, an amended application was filed. It appears that this document was prepared with the assistance of pro bono counsel.
For that reason, the Minister’s submissions were responsive to the grounds appearing in the amended application. Shortly before the hearing, the applicant’s pro bono counsel prepared written submissions.
Commendably, the solicitor advocate for the Minister acknowledged the positive assistance which was provided to the applicant. The court likewise acknowledges its gratitude for that assistance from counsel.
Consideration
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
By the amended application for review, the applicant abandoned his three original grounds of review and added, in their place, two further grounds. At the hearing, Ground 1 was abandoned.
Ground 2 of the amended application (allowing for the editorial insertion of earlier particulars to Ground 1) reads:
The Second Respondent fell into jurisdictional error in failing to:
a. give any consideration; or alternatively
b. give appropriate consideration,
to an integer of the applicant’s claim, namely, whether the applicant was at real risk of significant harm by reason of being caught up in the generalised violence in Baluchistan under the Complementary Protection Criterion.
Particulars
a.The Applicant gave evidence that he was likely to return to Baluchistan.
b.Despite this, the Second Respondent did not consider, or make any finding, about the place or places to which the applicant was likely to return in Pakistan.
c.The applicant also provided considerable country information concerning the risk of generalised violence in Baluchistan.
d.Despite this, the Second Respondent did not consider, or make any finding, about whether the applicant faced a real risk of significant harm by reason of being caught up as a non-targeted civilian in the generalised violence in Baluchistan.
Applicable principles – failure to consider claim
The applicable principles were not in dispute.
By s 414(1), a Tribunal is obliged, in imperative terms, to conduct the review of a valid application for review of a Part 7-Reviewable decision. Accordingly, a failure by a Tribunal to consider or properly deal with a clearly articulated claim or argument may constitute a constructive failure to exercise the jurisdiction conferred by s 414: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2).[5] Dranichnikov v Minister for Immigration and Multicultural Affairs.[6]
[5] (2004) 144 FCR 1, [55] (Black CJ, French and Selway JJ).
[6][2003] HCA 26, [24] (Gummow and Callinan JJ, Hayne J agreeing); see also CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [33]-[39] (Mortimer J); BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418, [9]-[13] (Allsop CJ); EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, [36] (Perry, Derrington and Wheelahan JJ).
In addition to its obligation to deal with the claims that are expressly made, an administrative decision-maker’s duty extends to require consideration of the claims and issues arising from the material before it and the issues that may arise from its own findings.[7] For those reasons, the decision-maker must consider each articulated claim and each claim that clearly arises from the review material before it.[8]
[7]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[8]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60] (Black CJ, French and Selway JJ).
Of pivotal importance is the scope of the Tribunal’s duty under s 414.
In NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No 2),[9] the Full Court held that a failure by a decision-maker to deal with a claim raised by the evidence and contentions before it, which, “if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.” Black CJ, French and Selway JJ held that if a Tribunal made an error of fact in misunderstanding or misconstruing a claim that had been advanced, and based its conclusion in whole or in part on that misunderstanding, this was tantamount to a failure to consider the claim. Their Honours endorsed[10] the analysis in Htun v Minister for Immigration and Multicultural Affairs,[11] that a failure to consider all claims was to be distinguished from erroneous fact finding.
[9] (2004) 144 FCR 1, [63].
[10] (2004) 144 FCR 1, [57].
[11] (2001) 233 FCR 136, [42], (Allsop J, Spender J agreeing).
In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs,[12] where Allsop J (as his Honour then was), stated:
The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be 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. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. (emphasis added)
[12] [2004] FCA 1695, [15].
In AYY v Minister for Immigration and Border Protection,[13] the Full Court stated:[14]
[13] (2018) 261 FCR 503.
[14](2018) 261 FCR 503, [18] (Collier, McKerracher and Banks-Smith JJ) (emphasis in original).
. . . In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs[2001] FCA 1802; (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection[2017] FCA 512 per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16[2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
. . . A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
·As to whether a claim clearly emerges, the following principles were collected in AWT15by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection[2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
1.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
2.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship[2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
As the Full Court recognised,[15] the principal significance of the appeal was that it addressed the circumstances in which the “Tribunal must also consider issues which arise from its own findings, which it has already made” as distinct from circumstances in which a claim arises from the materials which are before the Tribunal. The Full Court further recognised that the latter circumstance had been addressed by NABE.[16]
[15] [2018] FCAFC 89, [19].
[16] [2018] FCAFC 89, [26]
AYY17 has been endorsed by two Full Court decisions.
In Hong v Minister for Immigration and Border Protection,[17] Bromwich and Wheelahan JJ observed: “At the heart of the guidance in AYY17 is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials.”
[17] [2019] FCAFC 55, [69]. Logan J, although in dissent, agreed on the principles: [5].
More recently, in MZAOL v Minister for Immigration and Border Protection,[18] Bromberg, Farrell and Davies JJ stated:
The applicable principles are settled and were not in dispute. The Tribunal was required to consider and determine each of the claims expressly raised by the appellants and also those that were apparent on the material before the Tribunal. Where a claim is not articulated expressly it must clearly emerge from the material: see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37];see alsoAYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [17]- [18]. In Minister for Immigration and Citizenship v SZRMA[2013] FCAFC 161; (2013) 219 FCR 287, Mansfield, Gilmour and Foster JJ endorsed the helpful observation made by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 1695 at [70] that a claim must:
. . . arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
I apply these principles in the present application.
[18] [2019] FCAFC 68, [18].
Resolution
In substance, the applicant contended that the Tribunal fell into jurisdictional error by failing to give any, or any appropriate, consideration to an integer of the applicant’s claim for protecion under the Complementary Protection Criterion; namely, whether the applicant was at a real risk of harm by reason of being caught up in the generalised violence in Baluchistan.
Mr Brown, on behalf of the Minister, correctly submitted that the claim asserted by Ground 2 had not been expressly made. It was submitted that no substantial, clearly articulated argument relying upon established facts[19] was before the Tribunal in relation to the applicant being at risk as a non-targeted civilian from generalised violence in Baluchistan. While I accept that submission, the application did not turn upon whether the applicant had clearly articulated such an argument. To the contrary, judicial review was sought on the narrower basis that a claim clearly emerged from the country information before the Tribunal. Determination of the application requires that such a finding is not to be lightly made and that it is not sufficient that the claim might emerge from the materials. The applicant bore the onus in this court of demonstrating that the existence of the propounded claim of a generalised risk of significant harm to persons of Baloch ethnicity was established by the material that was before the Tribunal.
[19] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, [24]
The applicant conceded that the claim articulated in Ground 2 was not expressly raised. However, it was submitted that the applicant had, at all times, been self-represented. In those circumstances it was further submitted that “as a practical matter, a court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.” Kasupene v Minister for Immigration and Citizenship.[20] The principal there stated by Flick J has been accepted on many occasions. In ELA18 v Minister for Home Affairs,[21] Abraham J stated:
. . . while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party . . .
See also Navoto v Minister for Home Affairs;[22] Hong v Minister for Immigration and Border Protection;[23] AYY17 v Minister for Immigration and Border Protection.[24]
[20] (2008) 49 AAR 77, [21] (Flick J).
[21] [2019] FCA 1482, [31] citing Kasupene, supra.
[22] [2019] FCAFC 135, [103] (Middleton, Moshinsky and Anderson JJ).
[23] [2019] FCAFC 55, [48] (Logan, Bromwich and Wheelahan JJ).
[24] [2018] FCAFC 89, [18(d)] (Collier, McKerracher and Banks-Smith JJ).
In the way in which Ground 2 was framed, counsel confined the application to the Complementary Protection Criterion. In order to qualify for a Protection visa, it was necessary for the applicant to satisfy at least one of the criteria in s 36(2) of the Act.[25] By s 36(2)(aa) the applicant may have met one of the criteria for a visa based upon complementary protection if he had satisfied the Minister there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm.
[25] Act, s 36(1A)(a).
The expression ‘significant harm’ is defined by s 36(2AA) as including, relevantly, that a person would be arbitrarily deprived of his or her life; or subjected to torture,[26] cruel or inhumane treatment or punishment[27] or to degrading treatment.[28]
[26] Act, s 5.
[27] Act, s 5.
[28] Act, s 5.
To identify the source of a claim that clearly emerged on the materials, counsel for the applicant relied upon the significant amount of country information that had been supplied to the Tribunal, which both supplemented and included the country information that he had supplied to the delegate. In careful submissions, Mr Barrington of counsel sought to demonstrate that a relatively clear distinction could be drawn between country information which was focused upon the nature of risks faced by political activists, lawyers and journalists on the one hand, and that information which related to the risks faced by persons of Baloch ethnicity more generally.
Counsel sought to demonstrate, by reference to the reasoning in [44]-[45] that the Tribunal had considered, and relied for its findings, upon the country information which was referable, specifically, to risks faced by political activists, lawyers and journalists. By this process of analysis, it was submitted that the Tribunal had not referred to or otherwise given genuine consideration to country information falling within the second category; namely, information related to the risks faced by persons of Baloch ethnicity more generally. For the reasons which follow, I accept that submission.
The Tribunal accepted that the applicant was of Baloch ethnicity: [11]. After considering the background to the application, the Tribunal identified the claim which had been expressly made: [24].
It was common ground that the delegate and the Tribunal each considered and rejected the claim that had been made expressly. In this respect, the Tribunal gave the applicant the benefit of the doubt and accepted he may have visited a camp in Karachi to lend his support to and speak with the political activist, Mama Qadeer: [37].
However, as concerned the claim which, it was submitted, clearly arose on the face of the material before it, the Tribunal appeared to have given the applicant’s country information less than considered attention. In the Reasons at [33], the Tribunal stated that the applicant had provided:
. . . a number of news articles about conflict, disappearances and killings in Baluchistan. These include reports of the abductions and killings of educated activists and a Senator’s brother.
Otherwise, the Tribunal made an omnibus finding that, having regard to all of the evidence and findings it had made, it did not accept that the applicant faced a real chance of persecution or significant harm by reason of his race or Baloch ethnicity, and was not entitled to be afforded complementary protection: [48]-[49], [51]-[52].
From my examination of the Reasons, there is no further or more detailed discussion of that country information supplied by the applicant which related to the risks faced by persons of Baloch ethnicity more generally.
In demonstration of the Tribunal’s reasoning process, and its focus upon the country information which was referable specifically to the risks faced by political activists, lawyers and journalists, counsel for the applicant referred to the following matters.
First, in the Reasons at [44], the Tribunal stated:
The Tribunal accepts that a tribal leader called Sadar Asif Mengal was shot and his son killed in November 2016. The applicant has not provided any evidence to verify his claim that Sadar Asif Mengal is his cousin however the Tribunal accepts they may be from the same tribe and therefore connected. There is no indication in the news report provided by the applicant that Sadar Asif Mengal or his son were targeted by intelligence agents or for any reason associated with Baloch politics or human rights issues. The Tribunal does not accept on the evidence before it that the attacks on Sadar Asif Mengal or his son have any relevance to the applicant.
I am satisfied that the matters addressed in the Reasons at [44] were derived from the following country information:
a)News Article, 2 December, 2013, “Clan Chief Sadar Asif Mengal severely injured in firing attack in Nushko”;
b)News Article, 3 December, 2013, “Two killed, five injured in Baluchistan attacks”;
c)News Article, 4 November, 2014, “Tribal chief’s son shot dead.”
Secondly, in the Reasons at [45], the Tribunal stated:
The Tribunal accepts that Sabeen Mahmud and Hamid Mir both had some limited association with Mama Qadeer. The information provided by the applicant and the news reports cited by the Tribunal above all indicate that both were active campaigners and reporters on human rights abuses and killings in Baluchistan. The Tribunal notes the perpetrators of the attacks have not been identified and accepts it is possible the perpetrators were associated with intelligence or security forces. However, the Tribunal does not accept these killings are indicative of a risk to the applicant given the applicant does not have any role as an advocate or campaigner for human rights in Baluchistan.
I am also satisfied that the matters addressed in the Reasons at [45] were derived from the following country information:
a)News Article, 24 April, 2014, “Hamid Mir Defiant, still holds ISI responsible for attack”;
b)News Article, 28 April, 2014, “Hamid Mir blames, ‘ISI within ISI’ for attack”;
c)News Article, 24 April, 2014, “Who killed Sabeen Mahmud? The Pakistani rights activist wasn’t foolish, she was fearless”.
However, as appears below, the Reasons do not indicate that the Tribunal otherwise considered the country information that had been supplied by the applicant and which related to the risks faced by persons of Baloch ethnicity more generally.
In addition to the country information which was referable specifically to the risks faced by political activists, lawyers and journalists, counsel for the applicant identified the other country information that was before the Tribunal and which related to the risks faced by persons of Baloch ethnicity more generally. The other country information that was supplied to the Tribunal included the following news articles:
a)Press Trust of India, 27 January 2014: the article addressed the discovery of a mass grave which had been unearthed in the Baluchistan province;
b)An article (without attribution) dated 26 January 2014: the article reported upon an incident in which it was alleged that the Pakistan army was using poison gas in an attack on the Baloch population;
c)The News, 28 August 2013: the report concerned the politician, Sardar Akhtar Mengal, taking his oath of office at which time he stated that “heavenly Baluchistan has been turned into a depressing graveyard, while the sons of Baluchistan have been forced to take refuge in other countries…”;
d)The News, 11 December 2013: the article reported that the Supreme Court of Pakistan had issued an order in a Baluchistan missing persons case. Notably, the article reported:
Three-member bench headed by Chief Justice . . . was hearing missing persons case here Wednesday.
In the court order, the Supreme Court said it was IGFC’s responsibility to present the missing persons . . . It said court order should be implemented . . .
Earlier, Acting IGFC Brigadier Khalid Salim appeared before the court in casual dress. The court asked him about his attire and said his body language shows he would not obey the orders.
Meanwhile, the court separated the matter of IGFC contempt of court from missing persons case.
e)Samaa, 25 January 2014: the article is entitled “Recovery of missing persons crucial for Baluchistan peace: Dr Malik”;
f)Article, 15 July 2013: “Pakistan army atrocities in Baluchistan and silence of international community”. The article reported:
Video footage . . . emerged on social media exposing the brutalities of Pakistan military against Baloch people . . . One can clearly see that Pakistan military personnel are burning Baloch houses where Baloch women and children begging them to stop burning their houses as they have nowhere to live.
g)Article, 15 October 2013: “No flotilla for Baluchistan: Media ignores slow motion genocide”. The author reported:
A terrible war is unfolding in a faraway land called Baluchistan. Almost daily, bodies of young men, kidnapped and tortured to death by the Pakistan occupation army, end up in ditches. Others, still alive, are thrown from helicopters into the arms of the rough mountain terrain below. Yet not a single Western journalist covers this ongoing, slow motion genocide of the Baloch people.
h)Article, 12 August 2016: “Pakistan is Dirty War in Baluchistan.” The author reported upon a hospital bomb blast killing more than 90 people describing it as “the latest grim reminder to the ceaseless violence in Pakistan’s strife-torn volatile province of Baluchistan.” As was apparent, this article also focused upon the killings of lawyers and journalists and the shooting of a barrister;
i)Article, 11 December 2016: “Pak Army has ‘licence to kill, rape us, still UN is silent’: Baloch activist.” The article described the genocide of the Baloch people;
j)Independent News, 11 June 2011: “PAKISTAN: Dirty War from Bangladesh to Baluchistan.” The author reported upon the alleged abduction by the Pakistan military of 8,000 Baloch persons.
In the main, the articles referred to above were not referable to the risks faced by political activists and persons with a higher profile but related more specifically to the risks faced by persons of Baloch ethnicity.
Having examined the Reasons, in my view, none of the articles referred to in [63](a)-(j) above appear to have received any, or any genuine consideration by the Tribunal.
Further, although it had been abandoned, by Ground 1 the applicant contended that, had the Tribunal embarked upon the task which was required of it and made findings about the place to which the applicant was likely to return, to have done so would have brought into sharper focus the claim which squarely arose from the materials before the Tribunal. For this reason, the applicant maintained that it remained relevant to consider that the Tribunal had not dealt adequately with the express claim to fear harm on account of his Baloch ethnicity.
Attention was drawn to the fact that the Tribunal had made findings only about the killings of two persons, Sabeen Mahmud and Hamid Mir. It concluded that, because those persons were advocates or campaigners for human rights in Baluchistan, they were not relevant to consideration of the risk which the applicant claimed he faced. I consider that there is some force in some this submission. In particular, the Reasons at [44]-[45] demonstrate that the Tribunal considered the killings of those persons specifically and stopped at that point. More precisely, the Tribunal does not appear to have focused upon the risk faced by persons with involvement in Baluchistan politics. Had the Tribunal, for the purposes of considering the applicant’s express claim, examined the risks faced by persons having such political involvement, it may well have brought into sharper focus the question whether persons of Baloch ethnicity faced a real risk of suffering significant harm.[29]
[29] Act, s 36(2A)(aa).
NABE, and the cases that follow it, draw a distinction between a clearly articulated argument,[30] a claim that arises clearly on the material before an administrative decision-maker[31] and a claim that arises as an issue in the course of the Tribunal’s deliberation of a merits review.[32] The question of whether a tribunal is obliged to consider any such claim or issue will necessarily depend upon the way in which it is articulated, whether it is substantial and whether it is supported by established facts. An administrative decision-maker’s duty under s 414 of the Act does not extend to require that it should proactively search through the material to find a claim or issue which the applicant might wish to rely upon.[33]
[30] Dranichnikov [2003] HCA 26, [24].
[31] NABE, (2004) 144 FCR 1, [55].
[32] AYY17 , [2018] FCACFC 89, [19].
[33]NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, [70].
It may be accepted, as the Minister submitted, that the applicant had not expressly raised a claim to a risk of significant harm such as to engage Australia’s obligation to afford him complementary protection.[34] However, the issues raised by this application are whether a claim had been sufficiently raised by the evidence and contentions before it and, if so, whether it was of such a nature that the Tribunal was obliged to deal with it and whether it had done so.
[34] Act, s 36(2)(aa).
Allowing that a practical and common sense approach to decision-making requires that an unarticulated claim must “arise tolerably clearly from the material itself,”[35] I consider that the propounded claim did so in this case. Contrary to the Minister’s submission, the country information provided to the Tribunal did not relate solely to targeted killings of journalists, political advocates and campaigners for human rights. For the reasons above, I consider that the country information supplied by the applicant clearly demonstrated a generalised risk of harm to persons of Baloch ethnicity. The nature of that risk, if accepted, would appear to readily qualify as significant harm within the meaning of the Act.[36] The country information supplied by the applicant identified that risk squarely. It was not a claim that only might be said to arise from that information. In my view, it was a substantial issue. The issue was not considered by the Tribunal.
[35] NAVK, supra [2004] FCA 1695, [70].
[36] Act, s 36(2A)(a), (c), (d), (e).
Moreover, accepting that such findings are not to be made lightly, I consider that the country information sufficiently established a risk of significant harm to persons of Baloch ethnicity as a fact or matter that warranted consideration. The risk was, in my view, plain on the face of the country information that had been supplied but pnot been considered. To the extent that the issue may be considered debateable, since the applicant was self-represented before the Tribunal, I am more willing in light of the content of that country information to draw the line in favour of the conclusion that the issue was not considered. It was a freestanding claim that was distinct from the claim that had been expressly made. For completeness, in my opinion, the unarticulated claim was not capable of being subsumed in the findings that were made in relation to the claim which the Tribunal considered and rejected.
In the circumstances of this case, the failure to deal with the generalised risk to persons of Baloch ethnicity amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[37] The failure to do so constituted jurisdictional error. For completeness, I do not regard this as a case in which the Tribunal has misunderstood the applicant’s express claim. Rather, it involved a failure to address an issue that clearly arose on the country information that was before it.
[37]SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121, [50] citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [53], [62]; see also Dranichnikov vMinister for Immigration and Multicultural Affairs [2003] HCA 26, [24], [95]; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, [27]; Commissioner of Taxation v Primary Health Care Limited [2017] FCAFC 131, [24].
Ground 2 is upheld.
Conclusion
For the reasons above, the application is allowed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 November 2019
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