CFB16 v Minister for Immigration

[2018] FCCA 571

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFB16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 571

Catchwords:
MIGRATION – Protection Visa – whether the Tribunal considered claims arising from the applicant’s role as a zakir (religious singer) in Pakistan and Australia – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Applicant: CFB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1715 of 2016

Judgment of: Judge McNab

Hearing date: 4 September 2017

Date of Last Submission: 4 September 2017

Delivered at: Melbourne

Delivered on: 14 March 2018

REPRESENTATION

The Applicant Appeared in person

Solicitors for the Respondents: Ms Ward, Sparke Helmore

ORDERS

1. The application filed 11 August 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1715 of 2016

CFB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 11 August 2016, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 19 July 2016, to affirm a decision of a delegate of the first respondent (‘the delegate’) not to grant him a Protection (Class XA) visa (Protection visa).

2. The Applicant’s grounds of review are that:

   1.The decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)denied the applicant procedural fairness

   2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

Background

1. The applicant is a citizen of Pakistan and is of Pashtun ethnicity. He is a member of the Bangash tribe and follows the Shia religion.

2. The applicant arrived in Australia as an irregular maritime arrival on

   
   

   9 August 2012. On 12 January 2013, the applicant applied for the Protection visa. He was represented by a registered migration agent in this process.

3. The applicant’s claims when he made an application for a Protection visa are set out in a statement accompanying his Protection visa application. Those claims are accurately summarised in the Respondent’s submissions are follows:

   4.1The applicant claimed that he was a Shia Muslim, from Parachinar in Kurram Agency. He claimed to fear persecution and harm from the Taliban, and other anti-Shia extremists in Pakistan, on account of his Shia Muslim religion, his ethnicity (Bangash), his imputed political opinion in opposition to the Tehreek-e-Taliban Pakistan (‘TTP’) and/or other extremist groups, his membership of a particular social group of “Bangash Shias from Kurram Agency”, and because he sought refuge in a Western country.

   4.2He claimed that he was identifiable as a Shia because of his name and because of the scars on his back from self-flagellation.

4. On 6 November 2013, the applicant attended a Protection visa interview with the delegate. The content of the interview is contained in a statutory declaration of the applicant dated 9 December 2015,[1] in which the applicant raised two further claims:

   a)He claimed that he read out religious poems in Shia mosques and sites of worship in his role as zakir.

   b)He claimed that he assisted injured bomb blast victims on three occasions and after this he received threatening phone calls from the Taliban or Sunnis telling him to stop helping victims and performing as a zakir. He also received letters to this effect.

   [1] Court book 214.

5. On 14 March 2014, the delegate refused to grant the applicant a Protection visa. Whilst the delegate accepted that the applicant’s fear of harm due to his Shia religion and being from Kurrum Agency was well-founded, the delegate found that relocation was a reasonable option for the applicant.

6. On 26 March 2014 the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 22 October 2015 the Tribunal invited the applicant to appear before it and attend a hearing, which was scheduled for 15 December 2015.

8. On 15 December 2015 the applicant appeared at a hearing before the Tribunal. The applicant was invited to a further hearing on 3 March 2016 to discuss updated DFAT country information with the applicant. On 28 April 2016 the applicant appeared at a second hearing.

The Tribunal decision

1. The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

2. In relation to the applicant’s claims in relation to the Kurram Agency, the Tribunal made an adverse credibility finding in relation to the applicant’s decision to raise the claim regarding his role as a zakir for the first time in the Departmental interview. At paragraph [20] the Tribunal notes:

   …At hearing the Tribunal noted its concern about the credibility of his claims in this regard, given his statutory declaration provided to the Department is otherwise detailed. The applicant said he had little children who were crying, which had a bad effect on him. The Tribunal notes that in his statutory declaration provided to the Tribunal the applicant said he is not sure why he did not talk about his singing or the threats received at his entry interview or initial statutory declaration. However he noted that he was under a lot of stress and was very worried about his wife and children as the situation in Parachinar was very bad. Further, he stated that the case officer asked him directly whether he had received threats which are why he provided that information at the time (of the delegate’s interview). At the Tribunal hearing the representative argued that as the entry interview was conducted whilst the applicant was in detention and in quite a fragile mental state, it is not unreasonable that he may have omitted certain aspects of his reasons for leaving Pakistan. Further, not long after that he worked with his lawyer on his statutory declaration, so it is reasonable that he put forward the same evidence. The representative submitted that it was not a particularly late claim, noting that the applicant did give the evidence about these matters at the interview with the delegate and has been consistent since then. The Tribunal has considered the explanations offered by the applicant and his representative as to why he failed to mention his role as a zakir and threats received from the Taliban or Sunnis in Pakistan at his entry interview or in his initial statutory declaration. However even acknowledging that the applicant may have been in a fragile mental state at the time, and concerned about his family, the Tribunal finds it odd that he would omit to mention his role as a zakir and direct threats allegedly received from the Taliban on a regular basis over a four year period, given they now constitute his core claims for protection and are the main reasons, so it is claimed, that he fled Pakistan.

3. As to the remainder of the applicant’s claims regarding the Kurram Agency, the Tribunal made the following findings:

   a)The applicant’s oral evidence with respect to the threats from the Taliban and Sunni extremists was ‘implausible and internally inconsistent in some respects’.[2]

   b)It was unclear why the applicant had been a specific target of the Taliban, while his brothers who had remained in Kurram agency, had not.[3] The Tribunal did note that the applicant had explained that he was a zakir and that his Sunni neighbours had seen him assisting bomb blast victims.

   c)The applicant’s written and oral evidence about the bomb blasts was ‘mixed up’, and did not accept that the applicant was present or nearby when the bomb blasts occurred.[4]

   [2] Tribunal decision [21].

   [3] Ibid [22].

   [4] Ibid [23].

4. The Tribunal concluded that the applicant fabricated direct threats from the Taliban and/or Sunni extremists in the past in Kurram Agency.

   
   

   It did not accept that he received threatening phone calls from the Taliban in around 2007 or 2008 once or twice a month until he left the area in May 2012, nor did it accept that he had received 10 threatening letters from the Taliban, telling him to cease being a zakir and helping bomb blast victims. The Tribunal did not accept that the applicant’s brother received letters from the Taliban addressed to the applicant after he left Pakistan.[5]

   [5] Tribunal decision [24].

5. In considering whether the applicant faced a real chance of persecution on return to Kurram Agency in the foreseeable future, the Tribunal had regard to country information which indicated that while there was ongoing sectarian violence in the Kurram Agency, the weight of evidence suggested that there had been a sustained improvement in the security situation in the Kurram Agency since 2013 or 2014.[6]

   
   

   The Tribunal concluded that on the basis of the evidence before it, the risk to the applicant was remote. It did not accept that there was a real chance that the applicant would be targeted for harm based on his Shia religion, his Bangash ethnicity, his membership of a particular social group of ‘Bangash Shia from Kurram Agency’, his imputed anti-TTP political opinion, as an asylum seeker from a Western country, or any other convention reason.[7]

   [6] Ibid [41].

   [7] Ibid [42].

6. The Tribunal accepted that the applicant may be imputed with an anti-Taliban opinion on the basis of his religion and ethnicity, however, it did not accept that he, or his immediate family members, had been specifically targeted or harmed by the Taliban or Sunni extremists in the past. It found that there was only a remote chance that the applicant would be seriously harmed by the Taliban, other Sunni extremist groups, or anyone else for reasons of his Shia religion, his imputed political opinion, or membership of a particular social group of “Bangash Shias from Kurram Agency” or as an asylum seeker from a Western country. The Tribunal found that the applicant did not face a real chance of serious harm on return to Kurram Agency.[8] The Tribunal was also satisfied that the applicant would be able to practice his Shia religion on return to Kurram Agency.[9]

   [8] Ibid [43].

   [9] Ibid [44].

7. The Tribunal found the applicant’s oral evidence at hearing about whether his family in Kurram had been threatened or harmed by IS ‘vague and unconvincing’. The Tribunal did not accept that there was an active or organised IS presence in Pakistan and found that the applicant only faced a remote chance of suffering serious harm from IS on return to Kurram Agency.[10]

   [10] Tribunal decision [53].

The applicant’s role as a zakir

1. The Tribunal accepted that the applicant was a zakir in the past, had continued this role in Australia and was likely to continue this role on return to Kurram Agency. The Tribunal accepted that the applicant performed in this role at religious ceremonies in Australia, and that some of his performances had been uploaded online. However, it did not accept that the applicant had ever received threats from the Taliban or others on this basis.[11]

   [11] Ibid [58].

2. As to the applicant’s claims regarding his asylum seeker status, the Tribunal did not accept that the Taliban or anyone else would be aware or have any interest in knowing where the applicant had been, based on the fact that he left Pakistan on his own passport, he had been gone for several years, and because the Tribunal did not accept that the Taliban had made any inquiries about him. The Tribunal found that the applicant did not face a real chance of serious harm from the Taliban, or extremist Sunni groups, the authorities or anyone else for reasons of his imputed political opinion because of his extended presence in Australia as an asylum seeker.

3. The Tribunal considered other matters contained in the applicant’s statutory declaration regarding conflict in the Kurram Agency, and noted that the specific incidents described were part of the conflict in Kurram Agency and surroundings during this period. The Tribunal did not accept that the applicant or his family members were directly targeted by the Taliban or others in the past in relation to the incidents described in the applicant’s statutory declaration. The Tribunal further found that the applicant did not face a real chance of serious harm as the only breadwinner in his family on return to Kurram Agency in the foreseeable future.[12]

   [12] Tribunal decision [65] – [66].

4. The Tribunal considered the applicant’s claims both individually and cumulatively and was not satisfied that the applicant had a well-founded fear of persecution on return to Pakistan from the Taliban, Sunni extremists, the authorities or the Islamic State due to his Shia religion, imputed anti-Taliban political opinion, membership of a particular social group of “Bangash Shias from Kurram Agency”, or because of his time spent in the west as a failed asylum seeker.[13]

   [13] Ibid [67].

5. In addition, the Tribunal concluded that the applicant did not satisfy the complementary protection criterion.[14]

   [14] Ibid [68] – [72].

Submissions

1. In relation to ground 1(a), the respondent submits that there is no error of law apparent in the Tribunal’s decision. It submits that the Tribunal correctly set out the law with respect to the criteria for a Protection visa, applied the criteria to the facts of the matter and made findings that were open on the evidence.

2. In relation to ground 1(b), the respondent submits that the Tribunal complied with Part 7, Division 4 of the Act, in that it invited the applicant to attend a hearing in accordance with sections 425 and 425A of the Act, which he attended with the assistance of an interpreter and his representative.

3. In relation to ground 2, the respondent submits that this is not a proper ground of review.

4. The applicant’s oral submissions at the hearing were directed at whether the Tribunal had considered his claims to be a zakir and whether holding that role would impact on his claim for protection and the difficulty that he would have in returning to Pakistan and the Kurram Agency in particular.[15]

   [15]   The applicant was unrepresented before the court and the court has sought to paraphrase points raised by him and has otherwise read the decision for the purpose of ascertaining whether there is any apparent jurisdictional errors disclosed in the reasons.

Consideration

1. The court accepts that the applicant had reservations and concerns about the approach taken by the Tribunal in relation to its treatment of the applicant’s claims because he was a zakir. In circumstances where the Tribunal accepted that the applicant was a zakir, the applicant’s submissions focused on a claim that the Tribunal had not in its decision attempted any detailed consideration of how a zakir, who has a role of some prominence as a singer in the Shia religious rituals, would be treated by the Taliban or other Sunnis in Pakistan.

2. The Tribunal considered the applicant’s claims about the role of a zakir at [13] – [14] and [54] – [59].

3. The Tribunal focused on the fact that the applicant did not mention his role as a zakir at his entry interview or in his statutory declaration to the Department. It then used this to form part of the reasons for not accepting that the applicant would face persecution if he returned to Pakistan and not accepting other claims. However, the applicant argued that the Tribunal has not dealt in detail with his claim once it accepted that he was in fact a zakir and had not considered the implications that might have for the applicant on return to the Kurram Agency. It was argued that, in effect, the failure to make any particular findings about the persecution that the applicant may experience as a result of his role as a zakir is significant when one takes into account the findings of the Tribunal at [28] of the decision regarding the risk experienced by Shia Muslims in Pakistan where the Tribunal stated:

   Country information shows that Shia Muslims in general risk being targeted for terrorist attacks in Pakistan by Sunni groups including the Taliban, and that Shia Muslims from Kurram Agency in particular are widely recognised as having opposed the Taliban (primarily Turis). Reports indicate that in the first quarter of 2012 Shias continued to be targeted in Kurram Agency, with 30 security incidents in Kurram including 15 bomb attacks. In July 2013 multiple bomb blasts in Parachinar were reported to have killed around 50 people and injured over 100. However, as discussed with the applicant at hearing, country information from a variety of sources indicates that the situation has improved in the FATA, including Kurram Agency…

4. In my view when the decision is read as a whole, there has been no failure on the part of the Tribunal to consider the applicant’s claims and in particular those claims arising from the applicant’s role as a zakir. Further the decision of the Tribunal is not attended with such doubts as to constitute a jurisdictional error, or can it be said that the decision is legally unreasonable.

5. There is a substantial body of case law on the issue of legal unreasonableness. In particular I refer to Crennan and Bell JJ’s analysis in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]:

   …“[i]llogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

6. Their Honours Crennan and Bell JJ went on to state at [131]:

   …[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

7. In essence the Tribunal did not believe the applicant’s claims that he was subjected to direct threats from the Taliban and/or Sunni extremists in the past and Kurram Agency. The Tribunal has set out in clear terms why it reached that decision. The decision was not reached solely because the Tribunal did not accept the applicant’s claims arising from his role as a zakir. A full reading of the Tribunal's decision leads to a conclusion that the Tribunal has considered the applicant’s claims regarding his role is as a zakir in Pakistan and Australia. The Tribunal made a finding that it did not accept that the applicant had ever received threats from the Taliban during a period when the security situation was poor.[16] The Tribunal also considered the risks associated with the applicant’s return to Kurram Agency whether as a zakir or otherwise.

   [16] Tribunal decision [58].

1. At [59] the Tribunal accepted that the applicant had participated as a religious singer in religious ceremonies in Australia and that some of his performances were able to be viewed online. The Tribunal held:

   However, the Tribunal is doubtful that the Taliban or others would be aware of the applicant singing in Australia, and even if they did, it is not satisfied this would result in a real chance of him being targeted by the Taliban or other extremist groups on return to Kurram Agency, a predominantly Shia area where the applicant was able to practice his Shia religion and perform as a zakir since he was 15 until he left the area in May 2012 without drawing adverse attention from the Taliban or other extremists. Therefore, the Tribunal does not accept that the applicant would face a real chance of persecution from the Taliban or others if he continues with his singing at imambargahs or other ceremonies on return to Kurram Agency or because he has sung in Australia. His fear of persecution on these grounds is not well founded.

2. The Tribunal's findings inter alia of the applicant's failure to refer to his role is as a zakir in his statutory declaration made on 12 January 2013 are explicable having regard to the detail of all the other matters that he raises in that declaration. The applicant had failed to refer to what was his most prominent claim before the Tribunal in that declaration.

3. The Tribunal has considered the detailed submissions that were put before it by the applicant’s representative and has surveyed and considered specifically relevant country information including updated information from DFAT released in January 2016 (Tribunal decision [36]).

4. The Tribunal decision does not read as a series of boilerplate paragraphs pasted together but rather is a decision which has dealt in detail with each of the claims made by the applicant and considered them at length against specifically relevant country information which was raised with it either by the applicant’s representative or which was available to the Tribunal. The Tribunal is not legally unreasonable or otherwise affected by jurisdictional error.

5. There is no apparent basis to any claim that the applicant was denied procedural fairness by the Tribunal in the decision and no basis was raised by the applicant.

6. In the circumstances the court dismisses the applicant’s application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 14 March 2018