BZJ17 v Minister for Immigration and Anor

[2020] FCCA 1362

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZJ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1362

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Authority failed to consider relevant information – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: BZJ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 249 of 2017

Judgment of: Judge Street

Hearing date: 28 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Sydney

Delivered on: 28 May 2020

REPRESENTATION

The applicant appeared in person via audio link

Solicitors for the Respondents: Ms G Ellis, Sparke Helmore, via video link

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Order 1 made on 20 May 2020 is varied to permit the matter to proceed via video and/or audio link.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 28 May 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 249 of 2017

BZJ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 10 April 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. 

3. The applicant was granted a student visa on 12 March 2009 and did not arrive in Australia until 30 June 2009. The applicant then departed Australia on 9 March 2010 and returned to Australia on 19 March 2010. The applicant’s student visa ceased on 2 September 2010. The applicant’s further student visa was granted on 5 November 2010 and cancelled on 30 April 2011. The applicant departed Australia on 8 October 2013 and, having been granted a student visa on 10 October 2012, returned on 12 November 2013. That student visa ceased on 8 January 2014. It was not until 24 April 2015 that the applicant lodged an application for a Protection visa.

4. The applicant claimed to fear harm on the basis of having been sent threatening letters by the Taliban and as a result of an incident involving a shooting on 1 November 2013. The applicant claimed that the shooting related to the threats from the Taliban that the applicant had received. The applicant also claimed to fear harm by reason of an imputed religiously motivated conduct whilst being outside his home country in Australia and/or “spying for Jews and Christians” and being a returnee asylum seeker.

5. On 8 September 2016, the Delegate found that the applicant failed to meet the criteria for the granting of a Protection visa. On 22 September 2016, the applicant lodged an application for review before the Tribunal. By letter dated 30 January 2017, the applicant was invited to attend a hearing on 22 March 2017. The applicant appeared on that date to give evidence and present arguments. 

6. The Tribunal summarised the background to the application for a review and set out the relevant law in an ”Attachment A” that was incorporated by pagination as well as expressly in the Tribunal’s reasons.

7. The Tribunal summarised the applicant’s claim to fear harm by reason of the threats and the shooting and having resided in Australia. 

8. The Tribunal referred to country information as well as the applicant’s evidence at the hearing in relation to how the three letters were found by himself and his younger relatives in the yard, and the alleged approach, by persons unknown to the applicant, of both the applicant and his father subsequent to the threat letters, repeating those threats verbally. 

9. The Tribunal summarised the applicant’s evidence in relation to the incident on 1 November 2013 and referred to the applicant’s friend phoning the police after the incident and also referred to the applicant’s evidence as to the distance in respect of the two persons on the motorbike from the applicant and his friend.

10. The Tribunal noted that applicant acknowledged that it was an assumption made by him that the threat letters and the shooting were connected. The Tribunal did not accept that such an event as that described by the applicant would have resulted in a single report to police either by telephone or in the form of a First Information Report. The Tribunal did not accept that the applicant and the applicant’s friend would have been the only people interviewed at the relevant time given that, that on the applicant’s own evidence, the shooting occurred in a busy shopping area with lots of people in the vicinity. The Tribunal accepted that the applicant connected the threat letters to the shooting on the basis of an assumption made by him. 

11. The Tribunal identified further material provided by the applicant relating to news reports concerning the Taliban’s activity in a particular location.

12. The Tribunal identified having regard to that country information and found that none of the attacks referenced in the material provided by the applicant referenced the applicant himself or the applicant’s family. The Tribunal found that random Taliban activity does not equate to a real risk of significant harm to the applicant as a necessary and foreseeable consequence of the applicant being returned to his home country. 

13. The Tribunal identified that the applicant acknowledged that there had been no other threats either to himself or his family to the best of his knowledge. 

14. The Tribunal referred to country information, including information in respect of the prevalence of fraud in Pakistan, and placed little weight on the threat letters and the first information report provided by the applicant.

15. The Tribunal did not accept that the applicant received threat letters from unknown persons in October and early November 2013 because of alleged “spying for Jews and Christians.” The Tribunal noted that the applicant did not claim to be a member of a wealthy family. The Tribunal referred to country information in relation to the Taliban and their methodology being adopted by organised crime gangs. 

16. The Tribunal noted that the applicant remained in Pakistan from 8 November 2013 and that any persons responsible for the threats would have been well aware of where the applicant lived and that the applicant’s family has remained in its home town and have not been harmed.

17. The Tribunal did not accept that the shooting, if it occurred as described, is one that suggests the applicant was intended as the target of the shooting. 

18. The Tribunal did not accept that the only person to have called the police on any shooting on that morning would have been the applicant’s friend. The Tribunal did not accept the applicant’s suggestion that only the applicant and his friend were interviewed by police. It was in these circumstances that the Tribunal placed little weight on the applicant’s evidence relating to the described events.

19. The Tribunal found that the applicant was not the target of a shooting in a particular market on the morning of 1 November 2013. 

20. The Tribunal took into account that the applicant’s remaining family in their home town has not been the subject of further harm or threats, and the Tribunal found that the applicant does not have a well-founded fear of serious harm now or in the reasonably foreseeable future. The Tribunal found that there is less than a real chance of serious harm to the applicant now or in the reasonably foreseeable future if the applicant were to return to Pakistan on account of the applicant’s imputed religiously motivated conduct while outside Australia, including “spying for Jews and Christians”.

21. The Tribunal found that there is less than a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being returned to Pakistan on account of the applicant’s claims relating to the letters and shooting which occurred in 2013.

22. The Tribunal found that the applicant does not have a well-founded fear of harm by reason of the alleged letters and shooting. 

23. The Tribunal found that there is less than a real chance of serious harm to the applicant now or in the reasonably foreseeable future if the applicant were to return to Pakistan on account of belonging to a social group of unsuccessful asylum seekers.

24. The Tribunal found that there are no grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant would suffer significant harm. 

25. The Tribunal found that there is nothing to suggest the applicant would face persecution now or in the reasonably foreseeable future if returned to Pakistan. 

26. The Tribunal found that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 8 May 2017 and on 21 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. The applicant put submissions that he had made an error in relation to the distance that he and his friend had been from those on the motorcycle at the time of the shooting. This was in para 28 of the Tribunal’s reasons. The applicant confirmed that the error was his and not that of the Tribunal. This is not a matter that gives rise to any jurisdictional error by the Tribunal. 

4. The applicant also referred to the Tribunal’s reasons in relation to the reporting to the police and his friend telephoning the same as well as in relation to the Tehrik-i-Taliban (“TTP”), being the Taliban. The applicant’s submissions were, in substance, a disagreement with the adverse findings by the Tribunal. The adverse findings by the Tribunal were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the same does not identify any jurisdictional review. Nothing said by the applicant from the bar table identified a jurisdictional error. 

The grounds

1. The grounds in the application as follows:

   1.On or about 24 April 2015, I applied for a Protection Visa as my previous had been cancelled and I was afraid to leave the country and go back to Pakistan as I thought I would come to harm.

   2.On or about 08 September 2016, my visa was refused by the immigration department.

   3.On or about 22 March 2017, I attended an AAT hearing in Perth.

   4.On or about 10 April 2017, my merits review outcome was that the AAT upheld the finding of the department.

   5.I have a strong belief that the Member presiding at the hearing did not take relevant information into consideration.

   6.I have given evidence to immigration and the AAT regarding the incident, where on 1 November 2013, I was fired upon by two unknown assailants in Pakistan.

   7.I also believe that this is having a detrimental effect on my mental health and would like to see this come to a conclusion in a timely manner in order for me to continue on with my life.

   8.My first incident report made in Pakistan on 1 November 2016 can be verified through the Pakistani authorities if they attempted to do that. No fraudulent documents were produced.

   9.Please take into account my situation as I am an individual and not just the same as everyone else.

   10.I implore you to please take into account all the evidence available and listen to me with an open mind before coming to any conclusions. 

Grounds 1, 2, 3 and 4

1. Ground 1 is, in substance, a reference to historical matter, as are grounds 2, 3 and4. None of those grounds are capable of making out any jurisdictional error.

Grounds 5, 6 and 7

1. Ground 5 alleges that the Tribunal did not take into account relevant information. In the absence of particulars as to information not taken into consideration, that ground is incapable of making out any error. 

2. On the face of the material before the Court, the Tribunal had a real and meaningful engagement with the applicant’s claims and evidence. There is no relevant consideration that has been identified that the Tribunal failed to take into account. 

3. No jurisdictional error is made out by ground 5.

4. Ground 6 identifies the applicant’s claim and ground 7 expands on the impact of the applicant’s claim as does ground 7. 

5. There is nothing in grounds 5, 6 and 7 that are capable of making out any jurisdictional error. 

Ground 8

1. In relation to ground 8, the applicant disagrees with the proposition that fraudulent documents were produced.

2. The Tribunal identified the prevalence of fraud from country information and identified placing little weight on documents including the police report. That was a matter that was open to the Tribunal for the reasons given by the Tribunal. 

3. No jurisdictional error is made out by ground 8.

Grounds 9 and 10

1. Ground 9 and 10 are, in substance, an invitation to this Court to determine the matter on compassionate or discretionary grounds. This Court has no power to grant relief on compassionate or discretionary grounds. 

2. In substance, grounds 1 to 10 seek impermissible merits review. 

3. No jurisdictional error is made out by grounds 1 to 10. 

4. As the application fails to make out any jurisdictional error, the 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 28 May 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 19 June 2020