BYH19 v Minister for Immigration
[2019] FCCA 3310
•18 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYH19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3310 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to give real, genuine and proper consideration to relevant material before it – whether the Tribunal engaged in illogical and/or irrational reasoning – whether the Tribunal failed to take into account country information which it was required to consider – no jurisdictional error made – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 476 |
| Applicant: | BYH19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1167 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 18 November 2019 |
| Date of Last Submission: | 18 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D McDonald-Norman |
| Solicitors for the Applicant: | Hunter Shafiz Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | MinterEllison |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
DATE OF ORDER: 18 November 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1167 of 2019
| BYH19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 April 2019 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa (“Protection visa”).
The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. On 28 March 2013, the applicant arrived in Australia as the holder of a Student (Subclass TU-572) visa valid until 15 March 2016. On 23 April 2014, the applicant returned to Pakistan. On 23 May 2014, the applicant arrived back in Australia.
On 23 July 2014, the applicant applied for a Protection visa. The applicant claimed to fear harm by reason of being a Sunni Muslim of Pashtun ethnicity from a particular city in the Khyber Pakhtunkhwa. The applicant identified that he had lived with his family at the same address from birth until his arrival in Australia and that his eight siblings, including six brothers, also live there.
The applicant also claimed to fear harm because of letters allegedly received from a terrorist group Tehrik-e-Taliban (“TTP”) because the applicant must have been seen attending a site at which work was being done for the Pakistani Government, by reason of the applicant’s home region being close to the Khyber Agency headquarters and on the border of Afghanistan, because of threatening messages from militants during his recent trip to Pakistan and as the result of an incident involving a local and the placing of a bomb.
On 19 February 2016, a delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.
On 10 March 2016, the applicant applied to the Tribunal for review of the delegate’s decision. By letter dated 25 February 2019, the Tribunal invited the applicant to attend a hearing on 20 March 2019. The applicant appeared on that date to give evidence and present arguments. The applicant also provided submissions to the Tribunal dated 3 April 2019.
The Tribunal in its reasons identified the background to the application for review. The Tribunal also summarised the applicant’s claims.
In particular, the Tribunal referred to the letters which the applicant had produced. The Tribunal also referred to the applicant submitting a copy of an alleged 12 November 2014 newspaper article and translation relating to the diffusing of a bomb (or the controlled exploding of it by “water charge”) at or near a petrol station. The Tribunal identified the applicant’s claim that the bomb was placed in front of the home of his uncle. The Tribunal referred to the applicant having told the delegate that his uncle was the victim of a bomb explosion. The Tribunal referred to the delegate as placing greater weight on the newspaper article and its contents which said the bomb was planted adjacent to a petrol station.
The delegate had recorded that, at the interview, the applicant had stated that his uncle had not experienced any further incidents at the time of interview and noted that the newspaper article stated it was believed to have been the work of unknown terrorists in an effort to spread terror.
The Tribunal summarised the applicant’s evidence to the Tribunal, including medical reports provided by the applicant and articles concerning discrimination against Pashtuns. The Tribunal summarised what occurred at the hearing and raising with the applicant questions as to the genuineness of the two letters relied upon by the applicant.
The transcript of the hearing has been tendered. The transcript identifies the Tribunal raising with the applicant and exploring the issue in respect of the genuineness of the alleged incident involving the applicant’s uncle in respect of the newspaper article, that the applicant had told the delegate the bomb had actually exploded and the applicant’s claims of the Taliban calling his uncle and telling him that they would target him again. The Tribunal clearly identified to the applicant the absence of a link to his uncle in the newspaper article and the reference in the newspaper article to the petrol pump.
It is apparent that the applicant appreciated that his credibility was an issue being raised in respect of the assertions in respect of the newspaper article where the applicant asserted that he was telling the truth.
The Tribunal referred to alleged demands for money from the applicant’s uncle and that the applicant’s uncle is alleged to have started making payments after the diffusing of the bomb the subject of the newspaper article.
The Tribunal expressly referred to the different evidence that the applicant had given in respect to the bomb actually blowing up in front of his uncle’s house. The Tribunal referred to examining the newspaper article and noting that it stated that the bomb had been located next to a petrol pump. The Tribunal correctly identified raising this with the applicant. The Tribunal referred to the applicant’s evidence that the road lies beside his uncle’s house and the petrol station and that the applicant maintained that the bomb had been found in the front of his uncle’s house. The Tribunal member correctly observed that no houses were mentioned in the content of the newspaper article.
The Tribunal also referred to the applicant’s assertion that his uncle was approached by the authorities in the course of the investigation. The Tribunal noted that none of the reporting suggests that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give the Taliban money. The Tribunal member observed that the applicant’s claim about the bomb having been set directly to target a family member was tenuous, contradicted by the available independent evidence and otherwise unsupported and farfetched.
The Tribunal sought to explore with the applicant why the Taliban or some other group would want to extort money from him and his family. The Tribunal referred to the applicant’s assertion that his family was well off. The Tribunal referred to the submissions advanced on behalf of the applicant in relation to his home village no longer being controlled by the Taliban.
The Tribunal also referred to the applicant’s submissions provided dated 3 April 2019. The Tribunal referred to the applicant’s health issues and was not satisfied on the evidence that any deficiency in the applicant’s evidence is due to circumstances beyond his control.
The Tribunal referred to the applicant’s ethnicity and being a Sunni Muslim university graduate of his home region. The Tribunal did not accept that the applicant is genuinely interested in screening or publishing any political or religious views. The Tribunal found that there is no basis for accepting the applicant’s claim that he faced a real chance of being persecuted in Pakistan in the reasonably foreseeable future, either separately or cumulatively, due to the opinions and beliefs he holds.
The Tribunal referred to the applicant’s claims in relation to fearing harm because of being affiliated with his father’s business and that motivating the Taliban to harass him. The Tribunal referred to the applicant’s siblings all living and working in the applicant’s home region. The Tribunal also referred to the fact that the applicant voluntarily returned to Pakistan to care for his mother in 2014. The Tribunal concluded that there is no underlying or ongoing threat to the applicant’s family up until the purported arrival of the two letters one after the other.
The Tribunal referred to the illogicality in relation to the alleged letters. The Tribunal concluded that both letters are fabrications. The Tribunal referred to the applicant’s claim that his uncle is an example of the kind of retribution the Taliban exacts when its demands are ignored or refused. The Tribunal did not accept, on the evidence before it, that the petrol bomb had anything to do with the applicant’s uncle. The Tribunal considered the applicant’s efforts to suggest such a link ultimately impact on his overall reliability in this matter.
The Tribunal referred to the ease at which fabricated documents are created in Pakistan. The Tribunal referred to the applicant’s explanation in relation to the letters and found that explanation to be disingenuous, which further impacted on the conclusion that both letters are fabrications.
The Tribunal did not accept that the applicant’s family started receiving telephone calls from the Taliban or any other group demanding money in the last two years or ever. The Tribunal found that the applicant’s claims about his family having received threatening demands for money over the telephone is a recent invention which impacts on the applicant’s credibility.
The Tribunal gave no weight to the suggestion that the applicant’s father has or carries a firearm.
The Tribunal was not satisfied that the applicant faces a real chance of being persecuted by the Taliban, any other extremist and/or militant group or any party in Pakistan in the reasonably foreseeable future.
Further, the Tribunal was not satisfied on the evidence that the applicant would be unable to avail himself of effective state protection from harassment from the non-state parties described in the applicant’s claims. The Tribunal referred to the level of state protection available to the applicant, as evident in the protection enjoyed by his family, being sufficient to meet the standards set out in the 1951 Refugee Convention.
The Tribunal found that the applicant does not need to relocate in order to avoid a real chance of being persecuted. The Tribunal was not satisfied that the applicant faced a real chance of being persecuted in Pakistan for reasons of his Pashtun ethnicity. The Tribunal found that it was not satisfied that there is a real chance of the applicant being persecuted for reasons of his race or ethnicity in the event of trying to access his home province.
The Tribunal was not satisfied that the applicant faced a real chance of being persecuted in Pakistan in the reasonably foreseeable future for either separate or cumulative reasons of having stayed or having sought asylum in a western country in general or in respect of Australia in particular. The Tribunal was also not satisfied that the applicant faces a real chance of being persecuted in Pakistan due to his living close to the area called Khyber Agency.
The Tribunal, having considered all of the applicant’s claims, was not satisfied that the applicant faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any 1951 Refugee Convention-related reason.
The Tribunal found that the applicant’s claim of fear of harm is not well‑founded and that the applicant is not a “refugee” within the meaning of s.5H of the Act. The Tribunal found that the applicant did not meet the criteria in s.36(2)(a) of the Act.
The Tribunal was not satisfied that there are substantial grounds for believing that, as an actual or foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the decision under review.
Grounds of the Amended Application
The grounds in the amended application are as follows:
1. In its assessment of a translation of a newspaper article provided by the Applicant, the Second Respondent (Tribunal):
a. failed to give real, genuine and proper consideration to relevant material before it; and/or
b. engaged in illogical and/or irrational reasoning.
Particulars
a. The Applicant provided a newspaper report which he claimed was about an attempted bombing of his maternal uncle's house (Newspaper Article): CB 91.
b. The Tribunal did not accept that this bomb was set directly to target a family member of the Applicant: CB 249 [38]. In reaching this finding, the Tribunal materially relied on, inter alia, the following premises:
a. a finding of a contradiction between the Newspaper Article and the Applicant's claims about the bomb: "[The applicant] reiterated that the bomb had been found in front of his uncle's house. I note, however, that no houses are mentioned in this article" (Contradiction Premise) (CB 249 [38], emphasis added); and
b. a finding that “[The applicant] claims his uncle was approached by authorities in the course of their investigation, but none of the reporting suggests that investigators entertained the possibility that the bomb was laid to intimidate an individual who lived across the road from the petrol station after he refused to give money to the Taliban (Investigators Premise) (CB 249 [38]).
c. The headline of the Newspaper Article is "BOMB PLACED IN FRONT OF THE HOUSE IN the applicant’s home region DEACTIVATED" (CB 91). The subheading of the Newspaper Article is "Unknown persons had placed explosive material in front of a businessman's house" (CB 91).
d. During his hearing before the Tribunal, the Applicant referred to the fact that the Newspaper Article referred to a house: Transcript p 17.
e. In the premises:
a. the Contradiction Premise was not open to the Tribunal and/or was illogical and/or irrational; and/or
b. the Contradiction Premise was inconsistent with the Tribunal having given real, genuine and proper consideration to the contents of the Newspaper Article or to the Applicant's evidence at the hearing in respect of the Newspaper Article;
f. In the alternative, if the Contradiction Premise solely related to the failure to mention a 'house' in the body of the article (as opposed to merely mentioning the house in the headline and subheadline), the Contradiction Premise was illogical and/or irrational.
g. In respect of the Investigators Premise, the Newspaper Article:
a. did not state what possibilities were entertained by the investigators;
b. did not contain any material which directly contradicted the Applicant's claims; and
c. did not purport to provide an exhaustive account of the investigation of the bombing or of all persons approached during the course of that investigation.
h. In the premises, the Investigators Premise:
a. was not open to the Tribunal and/or was illogical and/or irrational; and/or
b. was inconsistent with real, genuine and proper consideration having been given to the contents of the Newspaper Article.
i. If the Tribunal had not relied on the Contradiction Premise and/or the Investigators Premise, there is a reasonable possibility that the Tribunal may have accepted the Applicant's account (as corroborated by the Newspaper Article) of an attempt to harm his family as wealthy businesspeople in a particular city: CB 249 38 . If the Tribunal had done so there is a reasonable possibility that it may have found:
a. that the Applicant had provided a credible account of his family's dealings with the Taliban: CB 252 [60];
b. that the Applicant would face a real chance of persecution or a real risk of significant harm in Pakistan; and
c. that the Applicant could not access effective state protection against such harm.
j. In the premises, the Tribunal's reliance on the Contradiction Premise and/or the Investigators Premise:
a. was material to its exercise of power; and
b. resulted in jurisdictional error.
2. The Tribunal failed to consider a report by the Department of Foreign Affairs (DFAT Country Information Report: Pakistan, 20 February 2019; DFAT Report), as well as other country information, which it was required to consider.
Particulars
a. The Tribunal was required to consider the DFAT Report in making its decision: Ministerial Direction No 56 [3].
b. The DFAT Report included material relevant to:
a. whether the Applicant would face a real chance of being persecuted or a real risk of significant harm in Pakistan: DFAT Report [2.84];
b. whether the Applicant could receive effective state protection in Pakistan: DFAT Report [5.21 and [5.11].
c. The Tribunal cited and considered the DFAT Report in respect of the prevalence of fraudulent documents in Pakistan: CB 248 [33]. But it did not refer to the DFAT Report in respect of:
a. whether the Applicant would face a real chance of being persecuted in Pakistan;
b. whether the Applicant could receive effective state protection in Pakistan;
c. whether the Applicant would face a real risk of significant harm in Pakistan.
d. The DFAT Report included information adverse to the conclusions reached by the Tribunal in each of the above respects. If the Tribunal had considered the DFAT Report in the course of reaching these conclusions, it would have referred to the DFAT Report, even if only to indicate why it had preferred other evidence: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) at [49]-[62].
e. In the premises, the Tribunal failed to consider the DFAT Report in reaching its conclusions as to:
a. whether the Applicant would face a real chance of being persecuted in Pakistan;
b. whether the Applicant could receive effective state protection in Pakistan;
c. whether the Applicant would face a real risk of significant harm in Pakistan.
f. In the premises, the Tribunal failed to consider the DFAT Report despite:
a. its requirement to do so under Ministerial Direction No 56;
b. in the alternative, its requirement to do so because the DFAT Report was cogent evidentiary material relevant to its assessment of whether the Applicant would face a real chance of persecution or a real risk of significant harm or could receive effective state protection in Pakistan: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112]; and
c. further or in the alternative, its requirement to do so in order to form the state of satisfaction required of it by the Migration Act: MZYTS at [34] and [46].
g. In the premises, the Tribunal's decision was affected by jurisdictional error.
Ground 1
In relation to ground 1, Mr McDonald‑Norman of counsel on behalf of the applicant contended that there had been a failure by the Tribunal to have a real, meaningful or active intellectual engagement with the applicant’s claims in respect of the attempted bombing at the applicant’s uncle’s house and/or the Tribunal’s findings were illogical or irrational. The cornerstone for Mr McDonald‑Norman’s argument was the content of the heading of the newspaper article.
As the Tribunal clearly identified in its reasoning, there was a disconnect between the heading and the content of the newspaper article. A reference in the heading to a businessman’s house was not referred to in the content of the newspaper article, as the Tribunal identified. The content of the newspaper referred to a petrol station and/or petrol pump. The proposition that there was not an active intellectual engagement with the applicant’s claims is contradicted by the Tribunal’s reasoning in paragraphs 38 and 60, which the Court has summarised above. The proposition advanced by Mr McDonald‑Norman was to the effect that the heading to the article, and reading the article as a whole including the heading, would support the applicant’s claims.
It is a matter for the Tribunal to make findings in respect of the applicant’s claims. The disconnect in respect of the newspaper article was obvious from the heading to the content of the newspaper article and identified and properly engaged with by the Tribunal.
Further, this was an applicant in respect of whom the Tribunal had made adverse credibility findings in providing fabricated letters. The Tribunal’s adverse finding in respect of the applicant’s claims concerning “the bomb in front of a businessman’s house” reflected a real and active intellectual engagement with the claims advanced by the applicant.
The adverse findings were open to the Tribunal for the reasons given by the Tribunal as summarised above. Those reasons cannot be said to lack an evident and intelligible justification. The proposition that the Tribunal’s adverse findings were illogical or irrational is without substance.
No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, Mr McDonald‑Norman submits that the Court should infer that the Tribunal did not have regard and take into consideration the whole of the Department of Foreign Affairs and Trade Country Information Report: Pakistan, 20 February 2019 (“the DFAT Report”). In particular, Mr McDonald‑Norman sought to emphasise in his written submissions paragraphs which he invited the Court to infer had not been taken into account.
This was nothing more than an attempt to engage in merits review. It is apparent from the face of the Tribunal’s reasons that the Tribunal referred to the DFAT Report. The Tribunal does not have to refer to the whole of the evidence before it. There is no proper basis to infer that the Tribunal did not take into account the whole of the DFAT Report. The submissions advanced in support of that proposition are, in substance, inviting this Court to engage in merits review.
Further, the Court accepts the Minister’s submission that there is no inconsistency in the Tribunal’s adverse findings and that the Tribunal’s reasoning in relation to state protection took into account the ability of the applicant’s family to continue residing where they were, which was a logical and rational matter for the Tribunal to take into account.
There is nothing in the Tribunal’s reasoning to support an inference that the Tribunal has not taken into account the whole of the DFAT Report. The applicant has failed to discharge the onus of establishing that the Tribunal did not do so.
No jurisdictional error is made out by ground 2.
Accordingly, the amended application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 November 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 13 February 2020
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