Chi15 v Minister for Immigration
[2016] FCCA 1112
•10 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHI15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1112 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 |
| Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 Re RRT; Ex parte H (2001) 1790 ALR 425 |
| First Applicant: | CHI15 |
| Second Applicant: | CHJ15 |
| Third Applicant: | CHK15 |
| Fourth Applicant: | CHL15 |
| Fifth Applicant: | CHM15 |
| First Respondent: | MINISTER FOR IMMIGRAITON AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2991 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2016 |
REPRESENTATION
The First and Second Applicants appeared in person
| Solicitors for the Respondents: | Ms F Taah of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2991 of 2015
| CHI15 |
First Applicant
| CHJ15 |
Second Applicant
| CHK15 |
Third Applicant
| CHL15 |
Fourth Applicant
| CHM15 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 15 October 2015. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicants protection visas. There are five applicants, who are a mother, a father and their three children. The first applicant, the applicant mother, who is referred to in these reasons as the applicant, has been appointed the litigation guardian for the three children.
The background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions, filed on 2 May 2016.
Background
The applicant, a 37 year old national of Pakistan, from Karachi, is the wife of the second applicant and the mother of the third, fourth and fifth applicants (who are all minors). She first arrived in Australia on 16 January 2011. She returned to Pakistan for about 3 weeks in 2012, re-entering Australia on 24 November 2012.[1]
[1] Court Book (CB) 95
On 14 January 2013, the applicant lodged an application for a protection visa, with the secondary applicants included as members of her family unit.[2] The secondary applicants made no individual claims for protection.
[2] CB 1-26
On 10 July 2013, the applicant attended a protection visa interview with the delegate[3] and on 9 July 2014 the application for the visas was refused,[4] with the applicants notified by letter dated 10 July 2014.[5]
[3] CB 99
[4] CB 93-114
[5] CB 115-120
On 22 July 2014, the applicants applied for review to the Tribunal.[6]
[6] CB 121-126
On 24 July 2015, the applicants appeared at a hearing before the Tribunal[7] and on 15 October 2015, the Tribunal affirmed the decision not to grant the visas.[8]
[7] CB 134-136
[8] CB 209-224
The applicant’s protection claims were set out in a lengthy statement, the first part of which comprised extracts of internet articles regarding religious discrimination and harassment in Pakistan.[9] The applicant claimed to be a Christian who taught at a Catholic school in Karachi and gave private English tutoring to Muslim students. She claimed she was attacked by Sunni Muslim extremists in June 2009 and told to cease teaching English to Muslim students. She reported this to the police however a few months later, she was approached by a group of men who, she learnt from her father, were members of a terrorist group that target Christians. On the advice of a local police officer friend, the applicant made arrangements to leave Pakistan. She claimed that when she returned to Pakistan in 2012, she was apprehended by Muslim extremists (the same group of men that attacked her in 2009) who accused her of attempting to convert Muslim students to Christianity. She claimed she was only released after the intervention of the police officer friend and a local Maulana (or Mullah), a respected Muslim leader whose children the applicant had taught English. The applicant fears that the terrorist group will bring false charges against her if she returns to Pakistan.
[9] CB 34-45
Tribunal decision
Whilst the Tribunal accepted that the applicant and her family were Christians and that she worked as a teacher in a Christian school in Karachi[10], it formed the view that the applicant was not a witness of truth and that the events on which her protection claims were based were false.[11] The Tribunal’s adverse credibility findings were based on the following matters:
a)inconsistencies in the applicant’s oral evidence to the delegate and to the Tribunal regarding what happened at the police station when she went to report the attack in June 2009;[12]
b)inconsistencies in the applicant’s claims in her written statement, her evidence to the delegate, and to the Tribunal regarding how and where she was apprehended by extremists when she returned to Pakistan in 2012. The Tribunal did not accept that applicant’s explanations for the inconsistencies, that her representative made a mistake when preparing her written statement, and that she had not mentioned some matters because she was in a bad state;[13]
c)inconsistencies in evidence regarding when and where the applicant was taken to when she was apprehended in 2012, and who was present at the mosque where she claimed she was taken to. When challenged by the Tribunal, the applicant changed her evidence – she initially claimed that Sunni extremists took her to a Shia mosque where pilgrims were present for Muharrem (a Shia religious festival), then later claimed that she was taken by Sunni extremists to a Sunni mosque where there were a number of pilgrims;[14]
d)inconsistent and confusing evidence regarding the police officer friend, who although had told the applicant after the 2009 attack that he could not help her because he feared the extremists, nevertheless intervened when the Sunni extremists apprehended her in 2012. The Tribunal considered the applicant’s evidence that the police officer was able to intervene because of the Maulana however it was not convinced that this explained the apparent change in the police officer’s behaviour;[15]
e)the applicant claimed that she left Pakistan in 2011 to save her life but later claimed that she was planning to return and live there (and in fact returned to Pakistan in 2012) because she thought that the extremists would have forgotten about her. The Tribunal found this difficult to accept, particularly given her persistent claims about Pakistan being dangerous for Christians;[16]
f)the applicant did not seek protection until two years after she first arrived in Australia.[17]
[10] CB 218 [44]
[11] CB 218 [41]
[12] CB 211-212 [9]-[13]
[13] CB 212-214 [14]-[20]
[14] CB 214 [21]-[24]
[15] CB 215 – 216 [25]-[32]
[16] CB 216-217 [33]-[38], [40]
[17] CB 217 [39]
The Tribunal found that the applicant had given inconsistent evidence regarding significant events in her account and formed the view that she had fabricated her claims for protection.[18] The Tribunal also considered the applicant’s husband’s oral evidence to it, however found that it did not overcome its concerns regarding the applicant’s credibility, and found instead that the applicant’s husband was also not a witness of truth, and had given false evidence in an attempt to corroborate the applicant’s account of events in Pakistan.[19]
[18] CB 218 [41]
[19] CB 218 [42]-[43]
At the hearing, the applicant submitted a number of documents in support of her claims including an email from her family member regarding their father’s ill-health[20], a letter from a Pakistani Catholic priest (who now resides in Australia)[21] and internet articles regarding his detention in Karachi with other church workers in 2001[22], internet articles regarding mistreatment of Christians in Pakistan,[23] a bundle of medical documents relating to the applicant’s youngest child indicating that he has seizures and suffers from asthma and rhinitis[24], and medical documents regarding the applicant’s own health.[25] The Tribunal found that the medical documents and the information regarding her father’s health did not establish that the events on which the applicant’s protections claims were based were true.[26] The Tribunal also found that the letter from the Catholic priest did not corroborate the applicant’s account of events, noting that he did not claim in the letter to have known the applicant in Pakistan, or to have witnessed the events recounted by the applicant.[27] In his letter, the priest requested two weeks to provide a ‘meaningful affidavit’, however the Tribunal’s decision record indicates that no further documents were received by the Tribunal after the hearing.[28]
[20] CB 140
[21] CB 147
[22] CB 148-151
[23] CB 152-161
[24] CB 173-199
[25] CB 200-204
[26] CB 2191 [46], 220 [52]
[27] CB 2019 [47]
[28] CB 219 [48]. The Tribunal’s decision was not made until almost 4 months after the hearing.
The Tribunal considered that there was no credible information before it indicating that the applicants suffered harm in Pakistan or that any person or group in Pakistan wished to harm them.[29]
[29] CB 218 [45]
The Tribunal then went on to consider whether the applicants held a well-founded fear of persecution in Pakistan because they are Christians from Karachi, and referred to several pieces of country information[30] regarding violence and discrimination against Christians in Pakistan, and violence in Karachi. Whilst the Tribunal acknowledged that there are instances where Christians suffer harm in Pakistan, it inferred from the country information that the risk of a person suffering serious harm for simply being a Christian was remote.[31] The Tribunal also was not persuaded that the country information submitted by the applicants demonstrated that there was a real chance that they will suffer serious harm simply due to their Christianity.[32] Similarly, whilst the Tribunal acknowledged that there are instances of violence in Karachi, it considered that the risk of the applicants suffering serious harm because of this violence was remote, as the applicants were not amongst people who, according to country information, are targeted, namely Shias, religious extremists, politicians and members of criminal organisations.[33] The Tribunal found that there was not a real chance that the applicants would suffer serious harm for being Christians, who will return to live in Karachi.[34]
[30] From the Department of Foreign Affairs and Trade and from United Nations High Commissioner for Refugees. See CB 220-222
[31] CB 221 [55]
[32] CB 221 [57]
[33] CB 221-222 [58]-[59]
[34] CB 223 [63]
On complementary protection, the Tribunal referred to its earlier credibility findings and the country information it had referred to and found the risk of the applicants suffering significant harm, for being Christians and from being from Karachi, to be remote.[35] The Tribunal noted the information regarding the applicant and her son’s health however found that they will not suffer significant harm for that reason, noting in any event, that they had not claimed to fear harm on the basis of their health, nor had they claimed that the medical treatment they may need would be unavailable in Pakistan.[36]
[35] CB 223 [64]-[65]
[36] CB 223 [66]
The Tribunal found that the applicants could not be granted Protection visas either on Refugees Convention or on complementary protection grounds and affirmed the delegate’s decision.[37]
[37] CB 224 [68]
Current proceedings
These proceedings began with a show cause application, filed on 3 November 2015. The applicants continue to rely upon that application. They have not taken up the opportunity afforded by procedural orders, made by a registrar on 10 December 2015, for an amended application or additional evidence. There are 13 paragraphs under the heading Grounds of Application as follows:
1.The Administrative Appeals Tribunal (AAT) erred in its judgment that the applicants evidence regarding police station incident and location of masjid where she was living are inconsistent.
2. The Administrative Appeal Tribunal denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims were unrealistic, implausible and were not obviously open on the know material.
3.AAT decision at paragraph -21 The AAT says “This concerned the Tribunal because the Tribunal understood that Muharram was a Shia religious event and therefore it seemed highly improbable that a Sunni extremist group would take her to a Shia mosque.” Tribunal makes factual error that Maharram is equally celebrated by Sunni in Pakistan. The Tribunal has not considered this aspect and made factual and legal error.
4.AAT decision at paragraph -22 “The Tribunal then asked the applicant to confirm that the people at the mosque who she called pilgrims had gone there because they were Shias marking the period of Muharram at a Shia mosque. In response, the applicant said that the mosque to which she was taken was not a Shia mosque. “Applicant correction was in line with Sunni tradition and not accepting the fact Tribunal made factual and legal error.
5.AAT decision at paragraph -24 “Her evidence on this issue was self-evidently, mobile, conflicting and inconsistent.” Tribunal did not accept applicant clarification and by making conclusion made factual and legal error.
6. The AAT findings of the Applicants overall claims as not credible are not based on the facts. The AAT erred in its reasoning looking the evidence and fact supplied by the Applicants. The Tribunal has not considered this aspect and made factual and legal error.
7. The applicant provided enough evidence about her ill health, her son sickness and other documents for consideration the AAT assertion not accepting any of the documents erred in its reasoning looking the evidence and fact supplied by the Applicant. The Tribunal made factual and legal error.
8. The AAT findings that the Applicant does not have a genuine fear of being harmed. The Tribunal erred in its judgment not considering the fact that the situation in Pakistan in unfavourable to the minorities. The Tribunal made factual and legal error.
9. The AAT findings against the country information that attack on minority such as Christian and Shia are erroneous. The Trinunal made factual and legal error in its findings.
10. The AAT conclusion about credibly based on two events Masjid and Police station incident and erroneous. The Tribunal made factual error in its findings and constitute bias against applicants.
11. The AAT failed to investigate applicant’s claim, especially the grounds of persecution and discrimination faced by the minority in Pakistan. Therefore the AAT decision dated 15/10/2015 was affected by bias constituting jurisdictional error.
12. The AAT failed to apply complimentary protection provision in applicants’ claim therefore the AAT Decision dated 15/10/2015 was affected by bias and made legal error.
13.The AAT in its decision conclude that the applicants does not meet the refugee criterion according to UN Convention on Refugee and the Complimentary Protection provision under Australian Migration Act – 1958 and Migration Regulation – 1994 and accordingly RRT made legal error. (errors in original)
The application was supported by an affidavit filed with it, which made some statements of uncontroversial facts and some statements of opinion. I received the affidavit as evidence, to the extent that it set out statements of fact, and as a submission, to the extent that it made statements of opinion.
A second and more substantial affidavit was filed by the applicants on 21 April 2016. It was apparent from that affidavit and the documents annexed to it that it was intended to support the proposition that the applicants are genuine refugees. The information annexed to the affidavit has been obtained subsequent to the Tribunal decision. I declined to receive the affidavit on the basis that it could not assist me in considering arguments as to the validity of the Tribunal decision. The material, however, might assist the Minister in any reconsideration of the applicants’ claims, should the Minister be minded to undertake that reconsideration.
Only the Minister prepared written submissions in accordance with the registrar’s procedural orders. I invited oral submissions from the first and second applicants at the hearing today. It was apparent that the applicant was labouring under the misapprehension that the hearing today would be an opportunity for her to advance again her claims for protection, including by reference to additional information. I explained to her the limitations on the court’s jurisdiction.
The second applicant sought to stress the precarious situation in Pakistan and the risks faced by him and his family should they be required to return there. It is plain from recent news coverage that Christians in Pakistan are coming under attack in certain parts of the country.[38] That would seem to pose a risk that the Minister could properly inquire into if he was so minded. The assessment of that risk is, however, beyond the scope of this proceeding.
[38] See in particular reports of the outrage in Lahore on Easter Sunday 2016.
The Minister’s submissions address the applicants’ grounds. I agree with those submissions.
The applicants’ ‘grounds’ are stated in the 13 paragraphs quoted above at [16]. The majority of those paragraphs refer to ‘factual and legal error’ made by the Tribunal however, those alleged errors are not identified with any specificity.
Paragraphs [1], [3], [4] and [5] complain about the Tribunal’s finding that the applicant had given inconsistent evidence regarding the alleged events that occurred in 2012 when she returned to Pakistan and also complains about the Tribunal’s rejection of the applicant’s explanations. Those complaints fail to raise an arguable ground of jurisdictional error. The Tribunal’s finding that the applicant had provided inconsistent evidence regarding what happened when she returned to Pakistan was open on the material before it and it was also open for the Tribunal to regard this as a factor contributing to its adverse credibility finding. It was further open to the Tribunal not to accept the applicant’s explanations for those inconsistencies.
Paragraph [2] alleges denial of procedural fairness because the Tribunal reached adverse conclusions which were ‘not obviously open on the known material’. However, the Tribunal’s adverse conclusions are not an indication of a denial of procedural fairness. Moreover, the material before the Tribunal supported its adverse conclusions.
Paragraphs [6] and [10] attack the Tribunal’s credibility findings. The Tribunal’s credibility findings, however, were open to it and were based on rational findings that were logically probative of the issue of credibility.[39]
[39] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Paragraphs [7], [8] and [9] do not identify any jurisdictional error by the Tribunal. They merely express the applicants’ disagreement with respect to the Tribunal’s finding that the applicant’s son’s health did not establish that the events on which her protection claims were based were true, and that the risk of the applicants suffering serious or significant harm due to violence in Pakistan was remote.
Paragraphs [10], [11] and [12] allege bias by the Tribunal. This contention is not supported by any particulars or evidence. There is no affidavit evidence annexing a transcript filed in these proceedings and it is a rare and exceptional case where bias may be established solely on the basis of the Tribunal’s reasons for decision.[40] The mere fact of an adverse decision or findings against an applicant does not, of itself, give rise to an inference of bias or suggest the decision maker approached its task other than with a mind open to persuasion.[41] There is nothing in the Tribunal’s decision to suggest that it approached its task other than with an open and impartial mind.[42] There is currently no evidence capable of substantiating an allegation of actual or apprehended bias.
[40] SZHVL v Minister for Immigration [2008] FCA 356 at [17]
[41] SCAA v Minister for Immigration [2002] FCA 668 at [37]–[38]
[42] Re RRT; Ex parte H (2001) 1790 ALR 425 at [27]–[32]
Paragraph [11] also contains an allegation of error on the basis that the Tribunal failed to investigate the applicant’s claims. The Tribunal is under no positive duty to investigate an applicant’s claims .[43] While an obvious inquiry about a critical fact, the existence of which is easily ascertained, may possibly give rise to a duty to inquire,[44] there was no obvious inquiry about a critical fact that arose from the applicant’s account that could have given rise to a duty to enquire.
[43] Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [20]
[44] See Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
Paragraph [13] merely repeats the Tribunal’s conclusions. It does not identify any error.
The grounds advanced by the applicants do not, in my opinion, support an argument of jurisdictional error by the Tribunal. Neither, in my opinion, is an argument of such error apparent from my own reading of the material. Plainly, the assessment of risk in Pakistan can be challenging because of variability in conditions across the country and over time. Those are matters for consideration by the bodies charged with the assessment of refugee claims; they are not for the Court to undertake.
Accordingly I will order, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant submitted that the payment of the costs would present real difficulties for her and her husband. However, the issue for the court is whether the costs have been reasonably and properly incurred by the Minister in responding to the application. I think they have.
I will order, the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 12 May 2016
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