Clu16 v Minister for Immigration
[2018] FCCA 1944
•20 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1944 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where grounds of application are not particularised – where Applicant claims his mental health was not properly considered by the Tribunal – where Applicant seeks merits review – where Tribunal afforded Applicant procedural fairness – where Tribunal considered the Applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 63 |
| Applicant: | CLU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1899 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 29 June 2018 |
| Delivered at: | Melbourne |
| Orders made: | 29 June 2018 |
| Reasons delivered: | 20 July 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Ms Bensted |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS MADE 29 JUNE 2018
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1899 of 2016
| CLU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Preliminary
These reasons support the making of orders on 29 June 2018.
Before the Court was an application filed by the Applicant on
6 September 2016 wherein the Applicant sought judicial review of a decision of the then Refugee Review Tribunal (‘the Tribunal’) dated
12 August 2016 in which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant to the Applicant a protection visa (‘the visa’).
The grounds of application are as follows:-
“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.”
In respect of the second ground, it is not a ground of review. The Court notes the application was filed as long ago as September 2016, and that the Applicant appeared as a litigant in person at the hearing. Any approaches by him to Victoria Legal Aid have had, obviously, a considerable period of time to reach some form of determination as to whether Victoria Legal Aid would provide assistance or not. In any event, the Applicant made no reference to that matter in his oral submissions made this day.
The Applicant’s argument that he was denied procedural fairness by the Tribunal cannot be sustained, a matter I shall return to. Whilst the Applicant was ordered to file written submissions prior to today’s date, he did not do so. Nevertheless, he was given an opportunity to make oral submissions this day, and with the assistance of an interpreter in the Pashto and English languages, he was able to make such submissions.
When the Court directed the Applicant specifically to address how it was the Tribunal had denied the Applicant procedural fairness, the Applicant could not respond in any meaningful way in his oral submissions. He could not particularise that ground. It became apparent that the Applicant’s challenge to the Tribunal decision was not that the Tribunal had denied him procedural fairness, but rather that the Tribunal’s decision was wrong. The Applicant indicated that he has been absent from Pakistan for seven years; that he has mental health issues; that it is not safe for him to return due to the presence of the Taliban and now ISIS forces; and that he is scared, terrified and still targeted. He claimed that his family and children remain in Pakistan and that they are ‘stuck’ in their home. The children do not go to school. He also claimed that he has mental health issues which were not, properly considered, by the Tribunal.
The Tribunal
The Tribunal correctly set out in paragraph 19 of the Decision Record that the issue in the case before it was whether the Applicant was owed protection obligations by Australia. Paragraph 20 of the Decision Record set out the Applicant’s claims to the Department, with a further claim being set out in paragraph 23 of the Decision Record. Paragraph 20 of the Decision Record is as follows:-
“ 20. According to the applicant’s claims to the department, he was born in 1990 in College Colony, Kurram Agency, Khyber Pakhtunkhwa and he is of ‘Bangash Turi Pashtun ethnicity’ and a Shia Muslim. He claims to belong to the anti-Taliban Shia Muslim Turi tribe, of which Bangash is a ‘sub tribe’. He fears being kidnapped, beaten and killed by fundamental Sunni Muslims including the Taliban because he is a Bangash Turi, Shia and because his family is wealthy. Furthermore:
a. Life in Kurram Agency has been difficult since 2007 when the Taliban blocked roads around Parachinar, blocking supplies, and killed many Turi and Shias on the roads, including his brother. The Taliban threatened to bomb them if they went to school.
b. He is identifiable as a Shia Muslim by his accent and his surname. Taliban check the identity cards of people on roads and also check if they have Muharram scars to target Shia Muslims
c. The applicant was sent to Peshawar in 2004 to complete secondary education and when war began in 2007 he was scared of staying in Sunni-dominated Peshawar because of Taliban presence, bombings targeting Shias and kidnapping of Shia students. The Pak Hotel, mainly used by people from Parachinar, was bombed in 2008 and many Shias including students [were] killed.
d. Around 5 March 2007 the applicant’s brother was abducted, tortured and killed by [the] Taliban travelling from Peshawar to Parachinar. After the applicant completed Year 10 returned to Parachinar he married his brother’s widow. He witnessed many bomb blasts in Parachinar including in February 2008 when he was at an election rally.
e. In 2010 he travelled to Islamabad for a year to study and work but it was not safe for Shias either due to bomb blasts, abductions and shootings by Taliban and other extremist Sunni groups. He could not go to mosque because Sunni extremists were often attacking them. Pashtuns are opposed in Punjab-dominated Islamabad and he was often stopped and given a hard time because he was Shia and Pashtun from Parachinar and he had to pay them bribes. He registered as a volunteer with Pakistan International Human Rights Organisation and the card issued to him helped when he was stopped by police.
f. He left because the situation continued to get worse particularly since 2011 and he feared he would soon be killed. The Pakistani authorities are not able to help Shias in Parachinar or anywhere else and there is nowhere else he can go. The major cities are dangerous especially for Shias from Kurram Agency who move to other areas.
g. He has been traumatised by his boat to Australia capsizing, during which 100 people were lost. He received counselling for this while in detention, is worried about his family and feeling under a lot of pressure and has asked this to be taken into account.”
As set out in paragraph 23 of the Decision Record, a further statement from the Applicant was provided to the Tribunal which stated that his father had passed away one and a half months ago in unknown circumstances and it was possible he was killed in an attack, but his family do not want to tell him. That statement also claimed that the situation in Parachinar is still very bad and that there was a bomb attack in a market a few months ago. His family is living in constant fear of another attack. The Applicant referred also to his mental health, and said that he did not think he would be able to cope if he returned to Pakistan.
Submissions were provided to the Tribunal by the Applicant’s representative. Those submissions provided country information which supported the arguments that the Applicant faced persecution and significant harm from the Taliban and/or other extremist Sunni groups in Pakistan on account of his claims.
In paragraph 25 of the Decision Record, the Tribunal noted that it had received and considered a brief letter from a clinical psychologist provided post-hearing, as well as post-hearing submissions addressing country information and concerns raised at the Tribunal hearing.
The Tribunal Findings
The Tribunal accepted that the Applicant was a national of Pakistan and found him to be a member of the Bangash Tribe who originated from Parachinar, and was a Shia Muslim.
Credibility and mental health
The Tribunal detailed its findings as to the Applicant’s credibility in paragraph 27 of the Decision Record, saying relevantly:-
“… the tribunal found the applicant’s evidence regarding his and his family’s circumstances, as well as his understanding of the situation in Pakistan to be vague, generalised and at times exaggerated and unreliable. There are discrepancies and inconsistencies between evidence given at various times including in relation to matters such as the applicant’s tribe, what he was doing at the time of a bomb in Parachinar in 2008 as well as during an attack on the ‘Pak Hotel’ in Peshawar. These issues have led to concerns about the applicant’s credibility and the reliability of his evidence.”
The Tribunal considered the Applicant’s mental state in assessing the Applicant’s evidence, including a letter from Ms Emma O’Connell, a clinical psychologist, provided to the Tribunal post-hearing. The Tribunal noted that the Applicant had not engaged with any mental health professional prior to the hearing, apart from while he was still in detention, and only had two sessions with Ms O’Connell before Ms O’Connell provided her brief letter. The Tribunal found, in those circumstances, the opinion as set out in the letter of somewhat limited value to its consideration of the matter.
The Tribunal noted further that many of the symptoms noted in the psychologist’s letter were self-reported by the Applicant, although the Tribunal acknowledged Ms O’Connell’s comment that the Applicant’s reported symptoms appeared consistent with his General Practitioner’s diagnosis of anxiety, depression and possible Post Traumatic Stress Disorder.
The Tribunal said as to these matters, in paragraph 30 of the Decision Record, the following:-
“Despite the limited evidence before it, the tribunal nevertheless accepts that the applicant is suffering from anxiety and depression although on the limited evidence before it, the tribunal does not accept that the applicant is suffering from PTSD. It further accepts that the applicant’s boat to Australia capsized in 2012, during which about 100 people died. The tribunal accepts that following this incident the applicant was hospitalised for pneumonia and that he received counselling in detention. The tribunal accepts that this experience continues to cause the applicant distress, as the tribunal observed at the hearing. The tribunal further accepts that the applicant may be anxious of the prolonged separation from his family, including in the context of his father passing away recently, as well as due to the uncertainty and prolonged nature of the protection process. However, the tribunal notes that the applicant is not currently on any medication and advised that he continues to work in Australia.”
The Tribunal was not satisfied, however, on the information as set out in the psychologist’s letter or any other evidence before it, that the concerns the Tribunal had about the Applicant’s evidence and claims could be satisfactorily explained by his mental health symptoms. The Tribunal noted that the Applicant was able to understand and respond appropriately to questions at the hearing, and that he was able to effectively give evidence and present arguments in relation to his claims. The Tribunal was satisfied the Applicant was able to meaningfully participate in the hearing before it. The Tribunal concluded, in paragraph 34 of the Decision Record:-
“ The tribunal also does not accept on the evidence before it that the applicant’s current mental health, or his subjective fear of harm in Pakistan, support his claims of past incidents of harm or threats or that he faces a real chance of serious harm, or real risk of significant harm, in the future.”
The Applicant’s background and claimed past incidents and threats in Pakistan, his time in Peshawar, Parachinar and his residence in Islamabad/Rawalpindi
The Tribunal accepted that the Applicant was sent to Peshawar for his secondary schooling in 2004 and that he resided there until 2007 when his father told him to return to Parachinar. The Tribunal accepted that the Applicant’s brother was abducted and subsequently killed by the Taliban in 2007 whilst travelling on the road between Peshawar and Parachinar. The Tribunal did not accept however that the Applicant’s brother had been targeted for any reason other than due to his profile as a Bangash Shia returning to Parachinar. It did not accept the Applicant’s brother had been targeted due to the Applicant’s family wealth or perceived wealth.
The Tribunal found the Applicant’s evidence of his time in Parachinar was vague, generalised, exaggerated and inconsistent with country information.
The Tribunal said in respect of its consideration of Parachinar, in paragraph 42 of the Decision Record relevantly:-
“The tribunal attempted several times at hearing to ascertain whether the applicant faced any problems himself after his return to Parachinar in 2007 until approximately 2010 when he moved to Islamabad/Rawalpindi. It found the applicant’s responses evasive and not on point. For example, one response was that the story of his life is that if he goes back he will be killed; if he went out the door he would not know if he will return. Another response referred to having to return to Parachinar from Islamabad after a bomb blast at the Islamic University. On a third attempt, the applicant again evaded the question and claimed he would be targeted for having been away for four years and referred to the Taliban and Daesh wanting to kill Shias.”
The Tribunal found, given the evidence before it, that the Applicant returned to Parachinar in 2007 and that it was unclear whether he was even in Peshawar at the time of the bombing which he stated was in 2008. Despite that lack of clarity, the Tribunal nevertheless was willing to accept that the Applicant may have still been in Peshawar at the time of the Pak Hotel bombing, and that this may have increased his fears, but did not accept that he was present at the Pak Hotel itself at the time of the bombing, or his vague and undetailed evidence that his classmates died. The Tribunal questioned the Applicant as to those matters with which it had concern, in particular inconsistencies in the Applicant’s own claims. The Tribunal accepted a number of the claims of the Applicant which were consistent with country information, such as the Applicant’s original statement making general claims regarding the difficulty of life in Kurram Agency since 2007, with the Taliban blocking roads and supplies, killing many tourists and Shias, and threatening to bomb Shias if they went to school.
The Tribunal noted that the Applicant had not claimed to have been targeted himself at any time while residing in Parachinar. The Tribunal noted, in respect of the Applicant’s claim that his family had not left the house since 2007 apart from getting food or in case of emergency, that such claim was implausible. Further, it was inconsistent with the Applicant’s own evidence about his actions since 2007 until his departure to Australia in 2012, during which he moved to Islamabad/Rawalpindi in 2010 and, on his evidence, travelled back to Parachinar whenever there was danger in Islamabad. The Tribunal noted that the Applicant had made other “vague and generalised assertions regarding his family’s circumstances in Parachinar”.[1] The Tribunal found the Applicant’s evidence about his family’s circumstances in Parachinar, including his children’s inability to go to school, “to be greatly exaggerated”.[2]
[1] Decision Record, 48.
[2] Ibid, 49.
Whilst the Tribunal was willing to accept the Applicant’s father had passed away, the Tribunal found the Applicant’s suggestion that his father may have been killed or died in an attack to be speculative on the evidence before it.
The Tribunal found the Applicant’s claims in relation to Islamabad/Rawalpindi to be “vague, generalised and exaggerated”[3] and asked the Applicant at the hearing if he could provide any specific example of problems he faced in Islamabad, given the Tribunal’s concern with the evidence then being provided by the Applicant. The Tribunal did not accept that the Applicant was unable to attend a mosque due to attacks by Sunni extremists; that he was too scared to work; or that the harm the Applicant claimed to have suffered at checkpoints amounted to serious harm. Further, given its finding in relation to the Applicant’s low involvement in the Pakistan Human Rights Organisation and that he had not indicated that he had faced any harm in the past due to his registration or membership, it found the Applicant would not face any chance of serious harm or real risk of significant harm for this reason.
[3] Ibid, 52.
In paragraph 57 of the Decision Record, the Tribunal found:-
“The applicant claimed that the reason he left Pakistan is because he was getting killed as a Shia. Given that the applicant has not mentioned any specific incidents of threats or harm directed at him, the tribunal does not accept this to be the case. Despite its concerns about the generalised and vague nature of the applicant’s evidence, the tribunal accepts that the situation in his home area of Parachinar, and reports of attacks against Shias in other areas of Pakistan at the time of his departure may have caused the applicant anxiety and subjective fear for his safety.”
Future risk of harm
As set out in the Decision Record, the Tribunal considered whether the Applicant faced a real chance of serious harm if he returned to Parachinar Kurram Agency for reasons of his Shia Muslim faith and/or Bangash (or Turi Bangash as asserted in submissions) ethnicity, imputed political opinion or membership of the particular social groups as claimed. The Tribunal considered relevant country information which included, as noted by the Tribunal “as discussed at length with the Applicant at hearing” in paragraph 61 of the Decision Record, more recent country information from a variety of credible sources which indicated that the situation in FATA including Kurram Agency and indeed throughout Pakistan in general has improved in recent years, and that the situation in Kurram Agency remains relatively stable. The Tribunal noted, in paragraph 62 of the Decision Record, that it discussed with the Applicant DFAT’s 15 January 2016 report on Shias in Pakistan and further other recent and credible country information as discussed with the Applicant and set out in paragraphs 63 through to 73 inclusive of the Decision Record.
In its consideration of whether the Applicant would face future harm in the event he returned to Pakistan, the Tribunal relied on its anterior findings in finding the Applicant did not face a real risk of serious harm due to his profile as a Bangash (Bangash-Turi) or Shia Muslim from Parachinar/Kurram Agency or any perceived political opposition to the Taliban or other militant groups arising from his profile.
In relation to the Applicant’s claims as to coming from a wealthy family, which he claimed increased his risk of harm, as he was perceived to be wealthy, on the Applicant’s evidence and country information the Tribunal found the Applicant did not face a real chance of serious harm or a real risk of significant harm due to his membership of the particular social group “Shias from Parachinar who are or are perceived to be wealthy” now or in the reasonably foreseeable future.
The Tribunal did not accept that the Applicant’s vulnerable mental health as argued, including his intense subjective fear of returning to Pakistan, would make him susceptible to lesser forms of harm that may amount to serious harm.
The Tribunal did not accept that the Applicant would be stopped, identified and killed or otherwise seriously harmed by the Taliban while undertaking road travelling and therefore did not accept that the Applicant faced a real risk of significant harm from the Taliban for this reason.
The Tribunal, as set out in paragraph 84 of the Decision Record (and in reference to the Applicant’s further claim that he would be targeted because he had been away for four years and that the Taliban would know he had been to Australia), did not accept that the Applicant faced a real risk of significant harm due to having spent several years abroad, specifically in Australia, or because he would be viewed as a Kafir.
In relation to the Applicant’s claims regarding the Applicant’s access to mental health services, the Tribunal found that the Applicant would not face a real chance of serious harm or a real risk of significant harm travelling on the roads to access mental health services, nor that his mental health would deteriorate if he returned to Pakistan. The Tribunal found it speculative, on the limited evidence before it, to assume that the Applicant’s mental health would deteriorate upon his return to Pakistan. In paragraph 88 of the Decision Record, the Tribunal said:-
“… As discussed with the applicant at hearing and as noted in submissions, country information suggests that mental health treatment is available in Pakistan.”
The Tribunal did not accept there to be a real chance the Applicant would face serious harm including social stigma due to any concerns about his mental health or that he would face a real risk of significant harm due to any concerns about his mental health including due to social stigma.
Having considered the Applicant’s claims cumulatively and individually, the Tribunal did not accept that the Applicant faced a real chance of serious harm for reasons of his ethnicity, religion, imputed political opinion, membership of any particular social group or any other Convention ground, if he were to return to Pakistan. Relying on its anterior findings, the Tribunal was not satisfied that the Applicant would face a real risk of significant harm now or in the reasonably foreseeable future should he return to Pakistan. Accordingly, the Tribunal was not satisfied the Applicant met the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
Consideration
The Applicant’s application is not particularised and is not meaningful.
Nowhere in the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) is it apparent that the Tribunal failed to comply with its procedural fairness obligations under Part 7, Division 4 of the Act. The Applicant was invited to attend, and did attend a hearing before the Tribunal on 24 June 2016. The Applicant gave evidence and presented arguments in relation to the issues in his matter and was assisted by an interpreter in the Pashto and English languages. He was represented in relation to the review by his registered migration agent.
The Tribunal was cognisant of the Applicant’s mental health, but did not consider that the Applicant was unable to present evidence at the hearing because of any mental health concern or for any other reason. This is canvassed in the Tribunal Decision Record in paragraphs 27 to 34 inclusive where the Tribunal sets out its approach to, and consideration of, that issue.
There was no “information” that was required to be put by the Tribunal to the Applicant in accordance with s.424A of the Act. The Applicant was on notice, as submitted by the First Respondent, from the Tribunal’s questioning of him at the hearing that the credibility of his claims would be the determinative issue on review.[4] The Tribunal’s decision clearly proceeded on the basis of the Tribunal’s consideration of relevant country information; written material submitted to the delegate and to the Tribunal; the Applicant’s oral evidence at the hearing and the Tribunal’s subjective appraisals of the Applicant’s evidence in its totality.
[4] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 63.
The remaining ground of the judicial review application is that the decision of the Tribunal is affected by an error of law.
A claim that the decision of the Tribunal is affected by an error of law is not a proper ground of review, to the extent that there is no particularisation of that ground. The ground does not identify any jurisdictional error in the Tribunal’s decision.
The oral submissions of the Applicant conveyed to the Court that what the Applicant seeks is a merits review. In the circumstances of this case, and given the factual findings of the Tribunal, supported by the evidence, that is impermissible.
The Tribunal’s Decision Record exhibits a lengthy and careful consideration of the Applicant’s claims. There is a weighing of the evidence, a questioning of the Applicant in respect of the evidence and country information, a correct identification of the relevant law and policy governing the Tribunal’s consideration of the review, and the necessary application of that law and policy. No relevant matters were excluded from the Tribunal’s consideration and no irrelevant matters were given any weight. As submitted by the First Respondent, the Tribunal considered the Applicant’s claims and evidence but was not satisfied that his claims of past harm were credible, or that he faced a real chance of serious harm or real risk of significant harm on return to Pakistan. In reaching that conclusion the Tribunal conducted a comprehensive examination of the country information before it, which included that submitted to it by the Applicant.
The application is dismissed, and costs shall follow that event.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 20 July 2018
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