Cja19 v Minister for Immigration

Case •

[2019] FCCA 3751

•

19 December 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJA19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3751
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 (Cth)

Federal Court Rules 2011 (Cth)

Migration Act 1958 (Cth), s.36

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

DAO16 v Minister for Immigration [2018] FCAFC 2

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v SZMDS (2010) 240 CLR 611

Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259

Minister for Immigration v Yusuf (2001) 206 CLR 323

SZHIS v Minister for Immigration [2006] FCA 1641

Tran v Minister for Immigration [2004] FCAFC 297

WAEE v Minister for Immigration (2003) 75 ALD 630
Applicant: CJA19
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File Number: SYG 1476 of 2019
Judgment of: Judge Driver
Hearing date: 19 December 2019
Delivered at: Sydney
Delivered on: 19 December 2019

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondents: Ms K Evans of Sparke Helmore

INTERLOCUTORY ORDERS

  1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

  2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

  3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

  4. Pursuant to rule 35.13(b) of the Federal Court Rules 2011 (Cth), the time for any application for leave to appeal is extended up to and including 20 January 2020.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1476 of 2019

CJA19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

  1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 May 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

  2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 5 December 2019. 

  3. The applicant, a citizen of Pakistan, arrived in Australia on 23 December 2014 as the holder of a student visa.  On 10 June 2015, the applicant applied for a protection visa.[1]  On 25 February 2016, the delegate refused to grant the applicant the visa.[2]

    [1] Court Book (CB) 1-40

    [2] CB 74-95

  4. On 18 March 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[3]  The applicant attended a hearing on 16 April 2019.[4]  The applicant provided further evidence at that hearing.[5]  He also provided post-hearing documents which included a letter from his father[6] and a further written statement.[7]  On 21 May 2019, the Tribunal affirmed the delegate’s decision.[8]

    [3] CB 96-102

    [4] CB 127-128; 181-183

    [5] CB 184-198

    [6] CB 199-203

    [7] CB 204-205

    [8] CB 209-227

Applicant’s claims

  1. The applicant’s claims for protection were set out in his visa application form and in a letter attached to his visa application.[9]  The applicant claimed to fear harm from law enforcement agencies as he was an Urdu speaker and a former member of the Muttahida Quami Movement (MQM) political party and the “mafia wing” of the MQM.  He claimed he could not relocate because he was not considered to be Pakistani as he was an Urdu speaker.  He also claimed that law enforcement agencies killed three of his family members and arrested and brutally tortured his father.

    [9] CB 31-33; 36-37

  2. On 18 March 2018, the applicant made further claims in a written statement attached to his application for review to the Tribunal.[10]  He claimed that five of his family members died in operation against MQM from 1992; that he would be unable to obtain employment as he was an Urdu speaker and MQM worker; that two members of his family were killed by MQM as they were members of Muttahida Qaumi Movement Haqiqi (MQM-H); and that innocent MQM workers like him would be killed by law enforcement agencies for their criminal acts.  He also claimed that he was attacked by the youth wing of the MQM, the All Pakistan Muhajir Student Organisation (APMSO), as they would believe he was providing information to agencies; and that he would face complaints from business owners from whom he collected extortion money.

    [10] Annexed to affidavit of Danielle Annalise Hope Stone made on 2 December 2019

  3. In a statutory declaration dated 14 February 2019, the applicant made additional claims.  He claimed that his family home was raided by Pakistani intelligence officers on 24 October 2015 and his family were questioned about his affiliation with MQM; that his younger brother was taken into custody by the authorities for five months and badly beaten; that he would be taken into custody and tortured if he returned to Pakistan and that he could not relocate because the law enforcement agencies targeted MQM members across Pakistan; and that he would not be eligible for any job or university enrolment or have voting rights in other areas of Pakistan because he held a Karachi ID.[11]

    [11] CB 147-155

  4. The applicant also provided a further written statement to the Tribunal on 26 April 2019 in which he clarified some aspects of his claims.[12]

    [12] CB 205

Tribunal decision

  1. The Tribunal set out the applicant’s claims and the oral evidence provided at the hearing.[13]  The Tribunal was satisfied the applicant spoke Urdu, was a Mohajir from Karachi, Pakistan, that his mother’s family were supporters of a faction of the MQM and that he had a brief association with MQM from 2011 to 2013 through his connection with student affairs.  However, the Tribunal had concerns about other key aspects of the applicant’s evidence.[14]

    [13] CB 211-217, [11]-[23]

    [14] CB 217, [25]-[26]

  2. Based on the available country information, the Tribunal accepted that Pakistani authorities, most notably the Rangers, had launched crackdowns on political violence in recent years including on the MQM, resulting in raids, arrests and disappearances.  It also accepted the applicant’s sector office was raided in 2015.  However, it was not persuaded that the applicant’s brother who was never an MQM member or worker, was arrested, detained and tortured for several months as claimed.  The Tribunal did not accept the applicant’s brother was treated in this manner because of his association with the applicant.  Overall, the Tribunal was not satisfied the applicant’s brief involvement with the MQM resulted in his having a political profile in Pakistan of the type which had been targeted by Rangers.  The Tribunal therefore did not find it plausible that the applicant’s brother was targeted in attempts to locate him.[15]

    [15] CB 217-218, [27]-[30]

  3. The Tribunal acknowledged that the family of the applicant’s mother may be a known MQM (Altaf Hussain) family.  However, it found according to his evidence, that the majority of her politically active family members left Pakistan in the 1990s.  The Tribunal considered if his mother’s family history remained so significant, that the Rangers might have expressed some interest in the applicant and members of his immediate family in 2013.  The Tribunal put to the applicant at the hearing that if his mother’s family were so well known for their MQM support, that they would have sought him and other family members out well before the 2015 raid.  The Tribunal was not persuaded by the applicant’s response and found that even if the applicant was keeping a low profile, it would be expected the authorities might have at least visited his home well before 2015.[16]

    [16] CB 218-219, [31]

  4. The Tribunal referred to the photographic evidence and medical report to support the applicant’s brother’s claimed arrest and torture.  The Tribunal raised with the applicant that the evidence did not assist the Tribunal in determining the cause of the injuries and/or who inflicted them.  The Tribunal accepted that his brother may have sustained some injuries which required medical treatment but was not satisfied that this was for the reasons claimed.  The Tribunal also referred to the letter of support provided by the applicant’s father and gave it little weight.  The Tribunal considered it significant that his father had an interest in the outcome of the present matter and found that the concerns about his brother’s arrest by the authorities were not outweighed by the evidence.  Further, the Tribunal did not accept that the applicant required assistance to obtain a passport or that he bribed officials in order to depart Pakistan.  In light of those findings, the Tribunal did not accept that the applicant’s house was raided or that his brother was arrested, as claimed.[17]

    [17] CB 219-220, [33]-[36]

  5. The Tribunal referred to the country information which indicated that MQM members faced a low risk of violence from militant groups and criminal elements in Karachi and that this risk had significantly reduced since security operations began in 2013.  The Tribunal found there was no convincing evidence before it to support that Rangers or intelligence officers were pursuing the applicant’s immediate family, either to harm them or in a bid to locate them.  The Tribunal was not persuaded that the applicant’s limited involvement would result in the applicant being treated differently to his immediate family members should he return to Karachi now or in the reasonably foreseeable future.[18]

    [18] CB 220-221, [39]-[40]

  6. The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm from the Pakistani authorities including Rangers and/or intelligence forces, for reason of his political opinion if he returned to Karachi now or in the reasonably foreseeable future.[19]  The Tribunal found the applicant did not have a level of involvement with the MQM to have attracted much attention and was not persuaded that any remaining MQM members from his faction would be interested in targeting him if he returned to Karachi.  The Tribunal referred to country information which stated that the risk of violence to MQM members from non-state actors had significantly reduced since security operations began, and that MQM faced only a low risk of violence in Karachi.  The Tribunal was not satisfied there was a real chance the applicant would suffer serious harm from former MQM members if he returned to Karachi now or in the reasonably foreseeable future.[20]

    [19] CB 221, [43]

    [20] CB 221-222, [45]-[46]

  7. In respect of the applicant’s claim to fear harm from disgruntled business owners, the Tribunal was not satisfied in the absence of any demonstrated attempts by business owners to find him and his limited visibility in the claimed harassment, that there was a real chance he would face harm if he returned to Karachi.[21]

    [21] CB 222, [47]

  8. The Tribunal found the applicant could safely return to Karachi and accepted that known Urdu speakers associated with the MQM might experience some discrimination in government employment.  The Tribunal did not accept the applicant would be unable to obtain employment if he returned to Karachi because he was an Urdu speaker or Urdu speaker associated with the MQM.  The Tribunal found that while the applicant might encounter some discrimination in government employment and experience derogatory remarks on occasion due to being an Urdu speaking Mohajir and/or an Urdu speaker associated with the MQM, based on the available evidence, this would not be so severe to threaten his ability to subsist or amount to persecution.[22]

    [22] CB 222-223, [49]-[51]

  9. The Tribunal was not satisfied there was a real chance that the applicant would suffer any serious harm on return to Karachi by reason of being an Urdu speaking Mohajir and/or Urdu speaker associated with the MQM.  The Tribunal was not satisfied on the basis of the applicant’s oral evidence that he suffered any past harm or would suffer any future harm which would amount to persecution for reason of his involvement in the student group APMSO or being actively engaged in any MQM political activity at all.[23]

    [23] CB 223, [53]-[54]

  10. Having considered the evidence individually and cumulatively, the Tribunal was not satisfied the applicant had a well-founded fear of persecution or that he met the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act). Referring to its anterior findings, it was also not satisfied he met the criterion in s.36(2)(aa) of the Migration Act and affirmed the decision under review.[24]

    [24] CB 223-224, [55]-[57]

The current proceedings

  1. These proceedings began with a show cause application filed on 17 June 2019.  The applicant continues to rely upon that application.  There are two particularised grounds in it:

    1.The Second Respondent failed to consider the evidence presented by the applicant in reaching their findings.

    Particulars

    a.The second respondent claims in paragraph 30 of their decision that, "Overall, the Tribunal is not satisfied the applicant's brief involvement with the MQM resulted in him having a political profile in Pakistan of the type which has been targeted by the Rangers." The Tribunal has neglected to consider the overall evidence relating to the applicants ties to the MQM outside of his direct involvement which would constitute a political profile. The second respondent goes on to say in paragraph 31 of the decision "The Tribunal acknowledges the applicant’s mother’s family may be a known MQM (Altaf Hussain) family" and this contradicts their assessment of the applicant's profile being directly linked to his political involvement.

    b.The Second respondent received Four photographs from a newspaper article, depicting the funeral and bodies of MQM members, including the applicant's uncle, a photograph of applicant's family, with MQM co-founder Azeed Ahmed Tariq, A letter from an Organiser of the MQM Australian unit amongst other evidence which directly support the applicants claims of his family's political position and his political profile.

    c.The Second respondent requested other evidence to support the applicants claim that his brother was arrested such as witness statements. When provided with a statement from the applicant's father, they gave this document little weight given the applicants father would have an 'interest in the outcome of this matter'. The second respondent's reasons for not giving weight to this document is self-serving in its nature and can be said for any evidence an applicant relies on for their application.

    2.The Second Respondent reached an implausible conclusion in their findings.

    Particulars

    a.The second respondent acknowledges evidence relating to the applicant's brother having sustained injuries and requiring medical treatment was provided. The second respondent fails to give the applicants the benefit of the doubt when considering this evidence. Whilst the second respondent is not satisfied of the reasons behind the injuries were a result of the injuries sustained during the brothers arrest and torture, they fail to consider any other plausible explanation for the evidence.

    b.The Second Respondent makes constant reference to their concerns over the fact that the applicant's family were not 'of interest' or apprehended during the 2013 crackdown and the fact that they were home was only raided in 2015 as being implausible. Without a clear understanding of the government or Pakistani intelligence officer's 'crackdown' agenda it is not possible to take a negative finding of the timeline of events. The applicants claims relating to the raids and arrest in 2015 are consistent with the agenda and motive of the Pakistani officials and the timeline cannot be the single reason for discrediting these events given the supporting evidence.

    c.The Second Respondent states in paragraph 51 of their decision that the applicant "the applicant may well encounter some discrimination in government employment and experience derogatory remarks on occasion due to being an Urdu speaking Mohajir and/or Urdu speaker associated with the MQM". This statement confirms the Second Respondents view that the applicant 'may well' be discriminates and be known to be people such as government employers to be associated with the MQM. It supports the applicants well founded fear of serious harm and the ease in which his political profile with the MQM will be known to many people within Pakistan.

    (errors in original)

  2. I received as evidence the applicant’s affidavit accompanying his application, the court book filed on 7 August 2019 and the affidavit of Danielle Annalise Hope Stone, made on 5 December 2019.  Annexed to that affidavit is a document inadvertently omitted from the court book, which is a statement the applicant put before the Tribunal, and appears to be the statement referred to by the Tribunal in its reasons at [18] and [19].[25] 

    [25] CB 212, 213

  3. Only the Minister provided written submissions in advance of today’s hearing.  I invited oral submissions from the applicant this morning.  He told me that he had provided all of the evidence available to him to establish his claims, and is concerned that this was not considered satisfactory by the Tribunal.  He conceded there were issues of weight in relation to the evidence, but is concerned that the Tribunal decision was based on assumptions, rather than facts.  I put to the applicant that this may be a reference to the Tribunal’s reliance upon country information, juxtaposed against the applicant’s claims, and he did not demur. 

  4. The applicant stressed that he knows the situation in Pakistan, and he knows how the authorities operate.  There may be long periods of relative peace and quiet, but that does not mean that there does not exist a real risk or chance of serious harm.  I invited the applicant to take me to any particular parts of the Tribunal decision which concerned him.  He declined that opportunity, and put his submissions at a higher level of generality. 

  5. In his submissions in reply, the applicant said that he had explained everything to the Tribunal, and is concerned that the Tribunal did not discuss details of his family members, who have left or remained in Pakistan.  He again submitted that there may be long periods of safety and apparent calm, but then things can change.  He also put the proposition that women in Pakistan are less likely to be targeted than men, and that this is a reason why his mother has not been harmed. 

  6. These matters went to the merits of the Tribunal decision, which are beyond the scope of these proceedings. As I put to the applicant, he did not seem to be able to challenge the proposition that the Tribunal acted in accordance with its statutory obligations under the Migration Act and conducted a fair hearing process.

  7. In my view, the grounds advanced by the applicant and the oral submissions made by the applicant do not rise above a dispute over the merits of the Tribunal decision.  The Minister’s submissions otherwise deal adequately with the grounds particularised in the application.  I agree with those submissions. 

Ground 1

  1. Particular (a) asserts that the Tribunal failed to consider the evidence in respect of the applicant’s indirect involvement with the MQM in reaching its finding that the applicant did not have a political profile of the type which had been targeted by Rangers.[26]

    [26] CB 218, [30]

  1. The Tribunal did consider the applicant’s indirect involvement with the MQM. It accepted that his mother’s family were supporters of Altaf Hussain’s faction of the MQM;[27] that they might be known as an MQM Altaf Hussain family; and that two of his mother’s relatives were detained in 2015 or 2016.[28]  However, it concluded that the majority of his mother’s politically active family members left Pakistan in the 1990s and that if the mother’s family history remained so significant, the Rangers might have expressed some interest in the applicant and/or his immediate family especially before 2015.[29]  It was open for the Tribunal to conclude that the applicant did not have the level of profile claimed in light of the country information before it and the deficiencies in the applicant’s evidence.  This particular seeks to cavil with the Tribunal’s findings and asserts that the Tribunal should have reached a different conclusion, which does not raise an arguable case for the relief sought.

    [27] CB 217, [25]

    [28] CB 220, [40]

    [29] CB 218, [31]

  2. Particular (b) alleges that the Tribunal failed to consider four photographs from a newspaper article, a family photo with the MQM co-founder, a letter from an organiser of an MQM Australian unit and other supporting documentation in support of the applicant’s political profile and his family’s political position.

  3. Contrary to the applicant’s assertions, the Tribunal specifically referred to this evidence.[30]  The Tribunal was not required to make explicit findings regarding each piece of evidence provided by the applicant.[31]  The Tribunal considered country information, the supporting documentation and oral evidence given by the applicant in respect of his political profile and family political position.  This particular is merely an emphatic way of expressing disagreement with the weight the Tribunal gave to the applicant’s evidence.[32]

    [30] CB 213, [20]

    [31] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [67]-[68], [73]-[74], [77], [89] and [91]

    [32] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [124]

  4. Particular (c) cavils with the Tribunal’s reasons for giving little weight to the letter from the applicant’s father.[33]  That letter referred to the father’s background; stated that their house had been raided; that they were questioned about the applicant’s involvement in MQM; that the applicant would be taken into custody; and that his brother was detained and tortured to put more pressure on the applicant and his family.[34]

    [33] CB 219, [34]

    [34] CB 200-203

  5. First, it was a matter for the Tribunal to identify the material that it found relevant to its reasoning and to give it appropriate weight.[35]  The Tribunal gave the letter little weight in circumstances where its concerns about the applicant’s brother were not alleviated by the contents of the letter which included that their house was raided in 2015 and that his brother was detained and questioned over his whereabouts.[36]

    [35] Tran v Minister for Immigration [2004] FCAFC 297 at [5]–[7] per Kiefel, RD Nicholson and Downes JJ; see also WAEE v Minister for Immigration (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ

    [36] CB 219, [34]

  6. Secondly, the Tribunal put the applicant on notice of the concerns it had in respect of the applicant’s brother’s arrest and gave the applicant the opportunity to provide further evidence in that regard.  The applicant indicated he did not have such evidence but he did have a letter from his father.  Ultimately, the Tribunal found that the letter did not alleviate its concerns and found it significant that the father had an interest in the outcome of the matter.[37]  That reasoning was open to the Tribunal.  It therefore cannot be said that there was no logical or rational basis for the Tribunal to reject the corroborative evidence or that it simply disregarded it without proper consideration.[38] Ground 1, particular (c) also fails to raise an arguable case for the relief sought. 

    [37] CB 219, [34]

    [38] DAO16 v Minister for Immigration [2018] FCAFC 2 at [42]-[44]

Ground 2

  1. Particular (a) is a contention that the Tribunal failed to give the applicant the benefit of the doubt when considering the evidence relating to his brother.  It is well-established that it was for the applicant to advance his arguments and evidence in support of their claims.[39]  The Tribunal gave the applicant the opportunity to provide further evidence post-hearing to support his brother’s claimed arrest.  The Tribunal was not required to give the applicant the benefit of the doubt in this regard.[40]

    [39] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]

    [40] SZHIS v Minister for Immigration [2006] FCA 1641 at [10]-[11]

  2. Insofar as particular (a) alleges illogicality, there was a logical connection between the Tribunal’s concerns as to claimed arrest of the applicant’s brother and the evidence before it.[41]  First, the Tribunal found on the applicant’s evidence, that his brother was not an MQM member or worker and therefore it was not persuaded that he was arrested, detained and tortured.[42]  The Tribunal found it implausible that the applicant’s brother was targeted in attempts to locate the applicant as it was not satisfied the applicant’s brief involvement with MQM resulted in the applicant having a political profile of the type targeted by the Rangers.[43]  It was in those circumstances that the Tribunal put to the applicant its concerns that it did not believe the injuries sustained were for the reasons claimed.  Ground 1, particular (a) fails to make out an arguable case for the relief sought.

    [41] SZMDS at [51]

    [42] CB 218, [27], [29]

    [43] CB 218, [30]

  3. Particular (b) asserts the Tribunal’s finding in respect of the applicant’s claims about the raids and arrest in 2013 and 2015 was implausible.

  4. A decision may be illogical if it was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[44]  The reasoning employed by the Tribunal was open to it as it was based on the country information as well as the oral and documentary evidence before it. Although framed as illogicality, this description concerning the raid and the arrest should be viewed merely as an emphatic way of expressing disagreement with it.[45]

    [44] SZMDS at [135]

    [45] Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J

  5. Particular (c) is a disagreement with the Tribunal’s finding that the discrimination the applicant might encounter would not be so severe that it would threaten his ability to subsist or amount to persecution.[46]

    [46] CB 223, [51]

  6. The Tribunal found discrimination against Mohajirs was “very limited” with the exception of Urdu speakers associated with the MQM who “may” experience some discrimination in government employment, or “may” be subject to derogatory remarks on the basis of country information.[47]  It was open for the Tribunal to find that the discrimination did not meet the required threshold of a real chance of serious or significant harm. At its highest, this is merely a disagreement with the Tribunal’s findings.[48]  Ground 2, particular (c) also fails to make out an arguable case for the relief sought.

    [47] CB 222, [49]-[50]

    [48] Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ

Conclusion

  1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed, under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

  2. In consequence of the dismissal of the application, the Minister seeks an order for costs, in accordance with the Court scale.  The applicant told me that he was willing to deal with the costs sought.

  3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

  4. I will extend the period for seeking any leave to appeal under the Federal Court Rules 2011 (Cth), given the possibility that written reasons may not be available within the usual 14 day appeal period.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:     20 December 2019


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