CGA15 v Minister for Immigration
[2018] FCCA 1450
•7 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGA15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1450 |
| Catchwords: MIGRATION – Application for judicial review – protection (class XA) visa – whether the Tribunal correctly applied the real chance test – whether relative or objective standard used – whether the Tribunal considered an irrelevant consideration – whether the applicant at risk of opportunistic attack on the basis of religion/ethnicity – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65 |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 CID15 v Minister for Immigration and Border Protection [2017] FCA 780 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 |
| Applicant: | CGA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2419 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 23 October 2017 |
| Date of Last Submission: | 23 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan and Ms Hudgson |
| Solicitors for the Applicant: | Esser Legal |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 29 October 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $9344.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2419 of 2015
| CGA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This matter comes before the Court by way of an application filed
29 October 2015 by the Applicant for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated
28 September 2015. The Tribunal affirmed the decision of the First Respondent to refuse the Applicant a Protection (Class XA) Visa pursuant to s. 65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant and his representatives filed a number of different submissions with the Court.
The Applicant initially filed particularised submissions before engaging legal representation, the official notice of which was filed on
19 October 2017.
The Applicant’s solicitor filed an amended application on behalf of the Applicant on 3 October 2017 and amended submissions on
6 October 2017.
The Applicant and his representatives advised the First Respondent and the Court via email dated 16 October 2017 that counsel for the Applicant intended to further amend the application and submissions. This was in light of the decision in CID15 v Minister for Immigration and Border Protection [2017] FCA 780, handed down 12 July 2017.
The Applicant notified the parties that they sought to rely on a further amended application that would be filed with the Court at the hearing on 23 October 2017, replacing the previous applications filed 29 October 2015 and 3 October 2017. This further amended application was accepted by the Court at hearing on 23 October 2017. For this reason it is only necessary to set out the grounds and submissions finally relied on by the Applicant.
The grounds of the further amended application are replicated exactly as follows:
1. The [Tribunal] erred in the exercise of its jurisdiction or failed to exercise its jurisdiction to review the decision of a delegate of the First Respondent, by misapplying the “real chance” and “real risk” tests in assessing whether the Applicant could safely relocate to an area of Pakistan outside Parachinar and FATA, such as Islamabad or Rawalpindi.
Particulars
(a) The Applicant made various claims to face a real chance of serious harm and/or real risk of significant harm in Pakistan at the hands of militant Sunni groups such as the Taliban and TTP on the basis of his ethnicity (Pashtun of the Turi/Bangesh tribe), religion (Shia) or actual or imputed (anti-Taliban/anti-TPP) political opinion.
(b) The Tribunal accepted that the Applicant had been kidnapped by the Taliban, that his nephews had been killed in a mortar attack and his niece had been injured in a missile attack by the Taliban and that the Taliban and associated groups have waged a campaign of violence against Shias throughout Pakistan, in particular in the home region of the Applicant.
(c) However, the Tribunal found that Shias are “relatively” safe in cities outside Parachinar and FATA, such as Islamabad or Rawalpindi, compared to the Applicant's home area in the Kurram Agency. In particular, the Tribunal found that:
(i) “there were other places which were considerably safer ... such as Lahore, Islamabad or Rawalpindi”;
(ii) “Islamabad and Rawalpindi are relatively free from politically motivated terrorist and sectarian violence”;
(iii) “the security situation varies greatly within different parts of Pakistan and there are a number of areas within the country which remain relatively free from the threat of militant, sectarian and politically motivated violence”;
(iv) “in most cases there are options for members of religious minorities, including Shias, to be able to relocate to areas of relative safety elsewhere in Pakistan”;
(v) “given the relatively low levels of sectarian violence in Islamabad and Rawalpindi ... the Tribunal is satisfied that the chance of the Applicant being harmed in an act of targeted sectarian or generalised violence in Islamabad or Rawalpindi is remote”; and
(vi) “many large urban areas such as Islamabad and Rawalpindi are home to mixed communities and offer greater opportunities for employment, access to services and a higher level of protection.”
(d) Based in part on these findings, the Tribunal concluded that the applicant did not satisfy the criteria in s. 36(2)(a) of the Migration Act 1958 (“the Act”) in that there was not a real chance of that the Applicant would face serious harm by virtue of his religion, ethnicity or actual or imputed political opinion.
(e) The test of whether there is a real chance that an Applicant will suffer harm in a place is not a relative one; it is not determinative whether the risk in one place is less severe than another place. What matters is the actual level of risk in any particular place.
(f) Based in part upon the findings set out in particular (c), the Tribunal also concluded that the applicant did not satisfy the criteria in s.36(2)(aa) of the Act, in that there was not a real risk of significant harm to the applicant. The Tribunal thereby made a jurisdictional error.
2. The Tribunal erred in the exercise of its jurisdiction or failed to exercise its jurisdiction to review the decision of the First Respondent, by taking into account an irrelevant consideration.
Particulars
(a) The Tribunal accepted that the Taliban had kidnapped the Applicant in 2010.
(b) The Tribunal found that the Applicant did not have a professional profile or a political profile with the Taliban or other extremist groups. In particular, the Tribunal found that:
(i) “the attacks on the Applicant and his family were opportunistic and do not establish that the Applicant or his family members have an adverse political profile with the Taliban or its extremist groups or that there is any evidence that they will be specifically sought or targeted by the Taliban either in their home area or elsewhere in Pakistan”;
(ii) it did not accept “that the Applicant has any political profile above any other of the millions of Shias who reside in various parts of Pakistan”;
(iii) it did not accept that “the Applicant will be specifically sought by the Taliban or its associated groups”;
(iv) the Applicant “is not a professional or a person who has any particular profile such that he would attract the attention of extremist groups”.
(c) These findings were a significant factor in the Tribunal reaching its conclusion that the risk of the Applicant being harmed if he relocated to a city such as Rawalpindi or Islamabad was remote.
(d) The 14 April 2015 thematic report on Shias in Pakistan and 14 April 2015 country report on Pakistan relied upon by the Tribunal described the threats of violence to Shias living outside FATA almost exclusively as involving attacks on Shia groups or opportunistic attacks on Shia individuals rather than the targeting of particular Shia individuals.
(e) The Tribunal's finding that the Applicant did not have a profile with the Taliban or other extremist groups was therefore irrelevant to its assessment of the level of risk to the Applicant from the violence occurring against Shia populations in areas outside FATA and vitiated the Tribunal's conclusion that the risks to the Applicant were remote.
Background
The Applicant is a national of Pakistan. He is of the Shia Islamic religion and Pashtun ethnicity. He is a member of the Turi/Bengash tribe and resided in Parachinar in the Kurram Agency. He claimed to fear harm from the Taliban on the basis of his religion, ethnicity and tribe as well as an imputed political opinion in opposition to the Taliban. His extended time in Australia was also cited as a reason for fearing harm from the Taliban.
The Applicant claimed he had suffered persecution in Pakistan and outlined three incidents:
a)on 5 June 2010, that the Taliban stopped a taxi he was driving and they beat and kidnapped the Applicant as well as his two passengers. He claimed that his family was required to pay a ransom to secure his release;
b)that around 4 October 2010, two of his nephews were killed while waiting in the city square for a car to take them to school; and
c)that around 17 November 2010, a missile launched by the Taliban landed on his house.
In 2012 the Applicant left Pakistan and travelled to Australia via Thailand, Malaysia and Indonesia.
On 23 June 2012 the Applicant arrived in Australia, having travelled from Indonesia by boat. He was detained on Christmas Island but granted a bridging visa and released into the Australian community on 18 October 2012.
On 29 November 2012 the Applicant applied to the Department of Immigration for a Protection Visa.
On 8 September 2014 a delegate of the Minister for Immigration refused his Visa application. While the delegate accepted the Applicant’s claims relating to the deaths of his nephews, the delegate did not find that the attack was targeted. The delegate also had doubts regarding the kidnapping claims and considered the incident opportunistic, but nonetheless accepted that there was a real risk that the Applicant would suffer significant harm in Parachinar. However, the delegate found that the Applicant could relocate and live safely in another of Pakistan’s large cities.
On 19 September 2014, the Applicant applied to appeal this decision to the Tribunal and he was invited attend a hearing on 14 August 2015.
The Applicant attended the hearing on 14 August 2015 with the assistance of a Pashto interpreter.
The Tribunal advised the Applicant by letter dated 29 September 2015 that his application for the grant of a Protection Visa had been refused and the decision of the delegate had been affirmed.
The Tribunal considered that even if the Applicant’s claims regarding kidnapping occurred, that there was no real chance that the Applicant would suffer serious harm if he returned to Pakistan. The Tribunal decided this on the basis that it would be reasonable for the Applicant to relocate and live safely in another area of Pakistan, specifically either Islamabad or Rawalpindi. It considered that there was no real chance or real risk of him suffering serious or significant harm in these areas as there are ‘relatively low levels of sectarian violence in Islamabad and Rawalpindi’.[1]
[1] Court Book 369, 370 [43].
Ground One
The Tribunal in part relied on a DFAT Country Report on Pakistan, dated 14 April 2015 and a DFAT Thematic Report on Shias in Pakistan, dated 14 April 2015 (‘DFAT Reports’), in drawing the conclusion that the Applicant did not face a real chance of suffering serious harm/real risk of significant harm (‘real chance test’)[2] if relocated to Islamabad or Rawalpindi. The Tribunal cited a number of statements made in these reports that utilised relative language when describing the safety of areas in Pakistan. The Applicant submits that this language demonstrates that the Tribunal did not correctly apply the real chance test: CID15 v Minister for Immigration and Border Protection [2017] FCA 780 (‘CID15’).
[2] While the Applicant has only made claims that the Tribunal erred in evaluating him under s. 36(2)(aa) of the Act, the Applicant’s submissions make reference to both tests. Subsequent references to the ‘real chance’ test should be read as including the ‘real risk’ test as the tests are the same: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The circumstances of the case in CID15 were very similar to those in this matter; that case also regarded an application for a Protection Visa made by a Pakistani national from Kurram Agency. The same country DFAT country information was relied upon by both Tribunals. In CID15, Moshinsky J found that the Tribunal had failed to apply the real chance test correctly. The real chance test must be used to make an objective assessment of the safety of an area for relocation by the Applicant. The ability to relocate safely in their country of origin is considered when evaluating whether the Applicant fulfils the criterion for being classified as a ‘refugee’ in s. 36(2)(a) of the Act. This test is the same standard as the ‘real risk of significant harm’ test for a person to whom Australia owes complementary protection obligations under
s. 36(2)(aa) of the Act. [3] Establishing that there is a real chance of serious harm involves an examination of whether a person may face a well-founded fear of persecution in a particular area. A well-founded fear is one where there is a real chance of persecution; a real chance is more than remote, but there may be a less than 50% chance of the harm occurring.[4] The real chance of harm occurring in an area is not determined relative to other areas.[5] Moshinsky J stated at [10]:
In my view, on the true construction of the reasons, the Tribunal was comparing the safety of different areas within Pakistan. Putting the matter simply, the Tribunal’s finding was to the effect that certain urban areas were safer than Kurram Agency, rather than that they were safe. Considering the Tribunal’s reasons as a whole, the Tribunal adopted a relative rather than an objective approach in applying the ‘real chance’ test in the context of the relocation issue. This amounted to a jurisdictional error.[6]
[3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, [246], [297], [342].
[4] Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 [12], [17].
[5] CID15 v Minister for Immigration and Border Protection [2017] FCA 780 [35].
[6] Ibid.
Thus, even if it is established that a person may be safer in place A than place B, this does not mean that the person is safe in place A for the purposes of the real chance test. It was found in CID15 that the use of relative language throughout the Tribunal’s decision led to a conclusion that the Tribunal had misunderstood the test and formed their conclusions on the safety of the Applicant in that case relocating of Islamabad and Rawalpindi as compared to Kurram Agency. This reasoning was said to demonstrate an incorrect understanding and application of the real chance test.[7]
[7] Ibid [48] – [49].
The Applicant submits an error of a similar nature has occurred in this case. The first ground of appeal is that the Tribunal erred in the exercise of its jurisdiction by failing to correctly apply the real chance test in assessing whether the Applicant could safely relocate within Pakistan. To support the claim that the Tribunal erred in misapplying the real chance test, the Applicant has cited passages from the decision of the Tribunal which largely mirror those that were at issue in CID15.[8]
[8] E.g. DFAT Thematic Report, Shias in Pakistan, 14 April 2015, [4.21] – [4.22].
I accept the submission of the First Respondent that though the phrases at issue are the same (which is unsurprising since both Tribunals relied on the same DFAT Reports to make their findings), each matter before the Tribunal turns on its particular facts. Whether the statements at issue constitute a misapplication of the real chance test is a matter of construction of the reasons.[9] In CID15, Moshinsky J found that a statement in the reasons for the decision of the Tribunal that introduced the DFAT reports set a context whereby all the following findings of the Tribunal in relation to relocation implicitly made comparisons between areas for relocation.[10]
[9] CID15 v Minister for Immigration [2017] FCA 780.
[10] Ibid [41].
While the Tribunal appears to make a relative evaluation of safety in [37] of its decision, I do not consider that this statement infects the remainder of the decision with implicit relative comparisons. Where relative observations are made, these are at each instance qualified with an objective conclusion on risk.[11]
[11] See e.g, Court Book 368 [40], 370 [43].
This can be distinguished from CID15. Many of the statements at issue, according to the Applicant’s Further Amended Application, occur in the context of [40] of the Tribunal’s decision record. They appear to be made as part of a paragraph detailing the independent country evidence before the Tribunal on safety in Pakistan. These statements do not seem to be linked to the Tribunal’s consideration of the Applicant’s claims in regards to relocation that which commences at [43].
During the hearing, the representatives of the Applicant handed up a document which detailed all relevant references from the DFAT reports utilised by the Tribunal. However, this document does not outline the instances in which the Tribunal utilises references to relative safety to make the decision. The Tribunal’s use of the DFAT Reports does not automatically invalidate the decision. Inherent in the Applicant’s submissions is a notion that by simply quoting the DFAT Reports in their reasons, the Tribunal has infected the decision with error. Unlike in CID15, in this case the DFAT Reports have been adduced into evidence. A review of the DFAT Reports demonstrates that they contain absolute statements in regard to risk as well as relative ones.[12] As noted in CID15, the question of whether the Tribunal applied the real chance test correctly is a matter of construction. It is evident here that the Tribunal has had regard to the objective information contained within the DFAT Reports and cited this information in its decision. As the DFAT Reports were not in evidence in CID15,[13] it was not possible to ascertain whether the Tribunal had access to objective safety statements in forming its conclusions. In this case, findings on the potential real chance of harm to the Applicant that would arise from relocating to Rawalpindi or Islamabad were made using DFAT Reports that contained objective statements as to safety. The Tribunal has made objective findings that were open to it from the information contained within the DFAT Reports. This ground has not been made out.
[12] E.g. DFAT Thematic Report, Shias in Pakistan, 14 April 2015 [4.1], [4.4], [4.17], [4.24]; DFAT Country Report on Pakistan, 14 April 2015 [5.18].
[13] The DFAT Reports were referred to but not produced in their entirety to the Court. This finding is based on submissions by counsel for the First Respondent who appeared for the Appellant in CID15.
Ground Two
The Applicant’s second ground of review is that the Tribunal erred by taking into account an irrelevant consideration when determining that the Applicant was not at real risk of significant harm if he relocated to Islamabad or Rawalpindi.
The Applicant submits that because the Tribunal accepted that he had been subject to an opportunistic attack in 2010, that it was irrelevant for the Tribunal to consider whether the Applicant had a profile with the Taliban or another group that would cause him to be at risk of a targeted attack. The Applicant asserted this on the basis that the
DFAT Reports allegedly contained descriptions of attacks on Shia groups or opportunistic attacks on Shia individuals, rather than targeted violence.
Firstly, I accept the submission of the First Respondent that the consideration of whether the Applicant had a profile that made him a potential target of the Taliban or other extremist groups was not prohibited under the Act. The term ‘relevant consideration’ in the context of administrative law is a reference to a circumstance which, by law, the decision maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[14] This requires the Applicant to identify the legal obligation that gives rise to the circumstances which the Tribunal must or must not consider.[15] The Applicant has failed to outline how considering whether he may be a target of the Taliban or another extremist group is prohibited under the Act. Whether the Applicant may be the subject of targeted violence is a relevant consideration when determining whether the Applicant may be subject to a real chance of serious harm under the Act.[16]
[14] [1986] HCA 40 [39] per Mason J.
[15] Ibid.
[16] Migration Act 1958 (Cth) ss. 36(a); 36(aa).
Secondly, the Tribunal did not limit itself to considering whether or not the Applicant faced harm only on the basis of being targeted by the Taliban or other extremist groups. It also examined the risk to the Applicant from sectarian violence against Shia populations in Islamabad and Rawalpindi. This was addressed at [41] and [43] of the Tribunal’s decision record.[17]
[17] Court Book 368 – 370.
Ground 2(d) of the Applicant’s further amended application submits that the DFAT Reports ‘…described the threats of violence to Shias living outside FATA almost exclusively as involving attacks on Shia groups or opportunistic attacks on Shia individuals rather than the targeting of particular Shia individuals’. Upon a review of the information contained in the DFAT Reports, ground 2(d) does not follow. The DFAT Reports are largely silent on the nature of the attacks cited by the Applicant; whether they are ‘opportunistic’ or not is unclear. It does not follow that where an attack is not described as ‘targeted’ in the DFAT Reports that it must, by default, be ‘opportunistic’.
Conclusion
The Applicant has failed to make out the two grounds of review relied upon. Therefore I find, for the above reasons, that the application for judicial review must be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 7 June 2018
3
2