CNN16 v Minister for Immigration
[2018] FCCA 480
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNN16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 480 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of a Protection Visa– whether failure to properly consider an integer of the claim –whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 474, 476 |
| Cases cited: ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | CNN16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1933 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 8 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Free |
| Solicitor for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitor for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No Appearance |
| Solicitor for the Second Respondent: | Australian Government Solicitor |
ORDERS
By consent, the time for the bringing of these proceedings is extended up to and including 8 September 2016.
The application filed on 8 September 2016, amended on 11 January 2018, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1933 of 2016
| CNN16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a 31-year-old man from Parachinar, Upper Kurram Agency, Pakistan (Court Book (“CB”) l17).
He is a Shia Muslim of Pashtun ethnicity and a member of the Turi tribe (CB l17).
On 8 September 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal’s (“the Tribunal”) dated 2 August 2016 (“the Tribunal Decision”).
The Tribunal affirmed a decision made by a delegate of the first respondent, the Minister for Immigration and Citizenship, as he was then (“the Minister”), on 12 July 2013, refusing to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).
In support of his application before this Court, the applicant raised one ground of review. Specifically, he argued that the Tribunal had constructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claims – namely, that he feared serious and/or significant harm from Islamic State in his home region of Parachinar in Pakistan.
Issue
The Court must determine whether the Tribunal fell into jurisdictional error in the manner alleged by the applicant.
Synopsis
For the reasons that follow, the Court finds that the Tribunal did not fall into jurisdictional error in the manner alleged by the applicant.
As a result, the Court dismisses the applicant’s application.
Background
Having reviewed all of the material before it, including a detailed Court Book spanning 313 pages, the Court adopts the procedural and factual background to these proceedings outlined by the applicant at paragraph 4 to 33 in his Contentions of Law and Fact dated 11 January 2018. The background facts are, relevantly, as follows.
On 22 June 2012, the applicant entered Australia as an unauthorised maritime arrival. He was rescued by the Australian authorities after the boat he was travelling in capsized en route to Australia from Indonesia (CB 55, 72).
On 24 June 2012, the applicant was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (“the Department”) (CB 9-14). He then claimed asylum in Australia (CB 11).
On 20 July 2012, the applicant was interviewed by an officer of the Department using an "Irregular Maritime Arrival" interview protocol (CB 15-39).
On 21 July 2012, the applicant was again interviewed by an officer of the Department using an "Irregular Maritime Arrival" interview protocol (CB 40-58). He maintained his claim for asylum in both these interviews (CB 31 and 52).
On 21 November 2012, the applicant lodged an application for a Protection visa (CB 59-137). In a statutory declaration provided with that application, the applicant claimed that, as a Shia Muslim, he:
a)feared harm from the Taliban on the basis of his religion, ethnicity and tribal membership (CB ll7-122);
b)had been shot in November 2007, resulting in him having nine operations (CB 118);
c)had assisted a Shia group, Tharek Hussain, by bringing water, food, medicine and cigarettes to members. He would also carry injured fighters back to Parachinar city (CB 118);
d)had been targeted in Rawalpindi in 2009; specifically, a man on the street called out "Hey Turi" and shot at the applicant but did not hit him (CB 120); and
e)was at risk of being targeted in any part of Pakistan (CB 121).
On 1 January 2013, the applicant’s legal representative provided a submission to the Department in relation to their client’s legal claims (CB 138-151).
Relevantly, that submission provided:
In summary, our client fears persecution in Pakistan for the following reasons:
•Our client is 26 year olds [sic] and originates from the village of Ghosar, Parachinar in the Upper Kurram Agency in Pakistan. Around 12 years ago, [the applicant] and his family moved to the area of Eid Gah Colony within Parachinar city and remained in this area from this time. The neighbouring area to Eid Gah Colony was the predominately Sunni Muslim area of Akbar Khan.
•[The applicant] is a member of the Turi tribe, of Pashtun ethnicity and a follower of the Shia Muslim faith.
•From 2007 the situation in Parachinar become more and more dangerous as the Taliban and anti-Shia groups started to attack Shia Muslims living within this area. During this time many Turi men from Parachinar were being kidnapped and killed. The Taliban also started to block the roads leading out from Parachinar further into Pakistan which restricted access to Shia Muslims living in Parachinar to get access to food supplies and basic medical care.
•During the road closure, [the applicant’s] father had become ill after he was not able to get access to proper medication for his diabetes in Parachinar and ended up having to travel along the dangerous route through Afghanistan in order to get to the Peshawar hospital. [The applicant’s] father made the trip to Peshawar but died in the hospital.
•A number of Turis were also killed while trying to travelling [sic] along the roads blocked or occupied by the Taliban, including [the applicant’s] cousin … who was killed while transporting passengers in an ambulance from Parachinar city to Peshawar.
•[The applicant] believes the attacks were in retaliation for Turi elders speaking out against the Taliban and denying them access through Turi areas to the Afghan border.
•At this time the Taliban were trying to incite the Sunni Muslims in the neighbouring areas to target the Shia Muslims in Parachinar. Around November 2007 [the applicant] was shot while outside of his home in in [sic] Eid Gah Colony during fighting between members of the Turi tribe and Sunni Muslims from Akbar Khan. [The applicant] required 9 operations for his gun shot wound and believes that he would not have had to undertake this amount of treatment if he had been able to travel freely to Peshawar hospital.
•As a result of the fighting and increased Taliban attacks in [the applicant’s] area, a local group known as Tharek Hussain started to recruit people to help them defend the area. Tharek Hussain had previously been an organisation focused on providing financial support to certain groups in need in the area but after the fighting started in the area they become more focused on self-defense.
•From 2008 [the applicant] was pressured into providing assistance to Tharek Hussain and assisted by bringing water, food, medicine and cigarettes to members of the group involved in fighting against the Taliban and also carrying back fighters from the areas of fighting to Parachinar city to get treatment.
•In 2008 [the applicant] tried to start a business repairing computers but was restricted in being able to build this business due to his inability to travel freely to purchase parts and due to the dangers in Parachinar city that prevented him from going to his office regularly. As a result of these issues, [the applicant] started to work as a taxi driver in 2009 in order to try and get an income to support himself. However, [the applicant] was forced to stop this job as petrol had become very inexpensive [sic] due to the road closures and he was unable to obtain enough work that did not require him to travel to areas that placed him at risk.
•[The applicant] faced difficulties in furthering his studies as the road closures and dangers along the route to Peshwar meant he was limited to undertaking studies within Parachinar that was of a very poor standard and was lacking adequate facilities.
•Due to the increasing difficulties [the applicant] was facing in Parachinar due to the restrictions on his movement and his constant fear of being kidnapped or killed, our client arranged to depart Pakistan to seek asylum in another country.
On 24 May 2013, the applicant’s legal representative emailed the Department to advise that the applicant had been doing volunteer work for the ‘Abbas Trust’, a Shia religious charity from 2005 until he left Pakistan (CB 152).
On 12 July 2013, a delegate of the Minister refused to grant the applicant a Protection visa (CB l58- l78). The delegate:
a)accepted that the applicant was shot in 2007 but did not accept that he was specifically targeted (CB 166);
b)did not find it credible that he was solely targeted on account of his membership of the Turi tribe in Rawalpindi (CB l66);
c)accepted that there was a real chance the applicant would suffer serious harm from the Taliban and other Sunni groups due to his religion and membership of the Turi tribe (CB l69);
d)found that the applicant could relocate elsewhere in Pakistan (CB 175); and
e)was not satisfied the applicant would face a real risk of significant harm if he relocated to an area in Pakistan outside his home region (CB 178).
On 18 July 2013, the applicant applied to the Tribunal[1] for review of the delegate’s decision (CB 179-183).
[1] At that time, the Tribunal was named the ‘Refugee Review Tribunal’.
On 4 February 2014, the applicant attended a hearing before the Tribunal (CB l90-191).
On 10 February 2014, the applicant’s representative provided a post-hearing submission (CB l92-197).
On 10 April 2014, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa (CB 200-219).
On 22 April 2014, the applicant filed an application for judicial review in the Federal Circuit Court.
On 26 August 2015, the Federal Circuit Court quashed the decision of the Tribunal and remitted the matter for rehearing before the Tribunal (CB 220-221).
On 2 May 2016, the applicant’s new legal representative provided the following documents to the Tribunal:
a)a statutory declaration from the applicant dated 21 April 2016 (CB 257-273); and
b)a statutory declaration from the applicant’s brother dated 21 April 2016 (CB 252-256).
In his statutory declaration, the applicant claimed to also fear harm from Islamic State (CB 269-270 at [34], [36]).
On 4 May 2016, the applicant’s legal representative provided a report from the applicant’s mental health counsellor dated 3 May 2016 to the Tribunal (CB 276-278).
On 5 May 2016, the applicant attended a hearing before the Tribunal.
It is noted that at this hearing on 5 May 2016, there was a discussion between the applicant and the Tribunal in relation to Islamic State (Transcript p29 at 24-28)[2].
[2] The transcript of the hearing forms Annexure "GW-1" to the Wilks Affidavit, herein referred to as “Transcript”
On 2 June 2016, the applicant’s representative provided post-hearing submissions and a copy of the applicant’s National Identity Card to the Tribunal (CB 279-298).
On 2 August 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa (CB 302-313).
On 4 August 2016, the applicant’s representative was notified of the Tribunal’s decision (CB 299-301).
On 8 September 2016, the applicant filed an application seeking judicial review of the Tribunal’s decision made 2 August 2016.
The Tribunal decision
On remittal, the Tribunal was not satisfied that there were substantial grounds for concluding that the applicant would suffer significant harm if returned to Pakistan (CB 312 at [50]).
As they relate to his claims concerning Islamic State, the Court notes the applicant provided the following evidence to the Tribunal:
a)In a recent statutory declaration dated 21 April 2016 the applicant stated:
Even within days of me making this statement, I have read of the group calling itself Islamic State making threats on Facebook to take on Parachinar.
I believe that what is known in Parachinar can be made known to Taliban and other Sunni groups very easily. These groups don’t any longer have an active face in Parachinar but there are threats now being made by Islamic State towards Parachinar. The people who are allied with Islamic State are the same people who were previously the Sunni Muslim from Parachinar who made war with us through the Taliban and Mujahideen. (CB 269-270 at [34], [36])
b)At his hearing before the Tribunal on 5 May 2016, the applicant gave the following further evidence:
i)there had been recent threats from Islamic State and his family were scared they were going to again fight against Parachinar (Transcript p27 at 43-47);
ii)there is a history of wars in Parachinar (Transcript p27 at 47 to p28 at 1-2);
iii)the Sunni families who had brought in the Taliban were again moving back into Parachinar and they might bring Islamic State with them (Transcript p29 at 30- 37);
iv)the government warned they were going to shut down the mobile network and internet in his area. The government said it was to stop people sharing information with Islamic State but it was so that news couldn’t go to the outside world about what was happening in Parachinar (Transcript p29 at 42-47); and
v)Islamic State hate Shia Muslims and it is in their sharia to kill them (Transcript p30 at 21-39).
The Tribunal at [29]-[34] in its reasons broadly accepted the applicant’s factual claims with the following exceptions:
a)although the Tribunal accepted that the applicant was shot in 2007, it did not accept this was due to his involvement in the Abbas Trust or religious gathering. It found that the shooting was a result of the applicant being caught up in the conflict between Turis and Sunnis at that time (CB 307 at [30]); and
b)the Tribunal did not accept that the applicant was shot at in the streets of Rawalpindi by men who shouted "Hey Turi" (CB 308 at [34]).
Based on the country information before it, the Tribunal did not accept that the chance or risk the applicant would be subject to sectarian violence was anything more than remote. Further, it did not accept that in his individual circumstances the risk of him being seriously harmed or significantly harmed by the Taliban or anyone else on account of being a Turi Shia (and imputed as supportive of the West) was more than remote (CB 310-311 at [39]). Relevantly, the Tribunal found:
Turi Shia claims
35.I have considered carefully the country information referred to in agent’s [sic] submissions concerning the situation in Kurram Agency and Parachinar and for Shias. I also have had regard to the other earlier Tribunal cases (including that of the applicant’s cousin) which are referred to in these submissions. However, after examination of the whole of the country information, I am of the opinion that the chance or risk that the applicant (taking into account his individual circumstances) will be seriously harmed or significantly harmed in his home area on account of being a Turi Shia or for any actual or imputed political opinion or membership of a particular social groups consisting of " Turi Shia Muslims from the Kurram Agency and/or Parachinar" or his family is remote. In making my findings, I have given considerable weight to the reports of the Australian Department of Foreign Affairs (DFAT) as these are authoritative, recent and they have been charged with the provision of advice to the Australian government. The substance of these reports was put to the applicant at hearing for comment. DFAT have reported:
4.3DFAT assesses there is a low risk of sectarian violence for most Shias in Pakistan and a moderate threat of sectarian violence for prominent Shias such as high profile professionals…
…
4.31 The majority of the Shia population in the FATA is concentrated in Kurram and Orakzai Agencies. Shias account for 40 per cent of the population in Kurram Agency, which is estimated to number approximately 935,000 people. Upper Kurram is predominantly Shia (approximately 80 per cent), while Central and lower Kurram are majority Sunni. Most of these Shias are from the Turi tribe, an exclusively Shia Pashtun tribe comprising approximately 500,000 people dispersed throughout Pakistan. Shias also make up approximately 40 per cent of the Bangash tribe, which populates Orakzai Agency, as well as Kohat, Hangu and other settled parts of Khyber Pakhtunkhwa - mainly Peshawar.
4.32According to the FATA Research Centre (‘FRC’), there were relatively few sectarian or other militant attacks in Kurram Agency in 2014 or the first six months in 2015. FRC data indicates there were 14 security incidents in Kurram Agency from January-June 2015, mostly in lower Kurram. Most of these were IED and ambush attacks against security forces around Shabak and Thal, although there was also a failed suicide IED attack on a football match in Alizai on 6 May 2015. On 13 December 2015, however, an IED attack at a market in Parachinar killed 25 people and injured 62 others. Militant groups LeJ and Ansarul Mujahideen have both claimed responsibility for the attack...
4.33…DFAT understands the Thal-Parachinar Road remains open and there have been no major security incidents on the road in 2015. Federal security forces continue to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The 13 December 2015 IED attack in Parachinar highlights a degree of vulnerability in these security measures.
…
4.35According to the SATP, there was only one sectarian attack in the wider FATA in 2015: on 4 January, an IED attack targeting Shias at a volleyball match in the Kalaya area of Orakzai Agency killed four people and injured eight. FRC data indicates most casualties in the FATA in the first six months of 2015 (1,104 deaths in 181 incidents) were militants or security forces killed as part of Operation Zarb-e-Azb. A total of 113,311 families returned to the FATA in 2015, including North and South Waziristan and Khyber Agencies.
4.36DFAT assesses there is a low level of sectarian violence overall in the FATA, however the level of generalised violence varies throughout the FATA. This violence is greatest in North Waziristan and Khyber Agencies because of ongoing military activity associated with Operation Zarb-e-Azb. DFAT assesses there is a low level of generalised violence in Kurram and Orakzai Agencies.
36.More broadly in terms of Shias and Turis, DFAT have commented:
2.4...Approximately 95 per cent of Pakistan’s population of 190 million is Muslim. Seventy five per cent of Pakistan’s Muslims identify as Sunni and 20 per cent as Shia.
…
3.1Article 20 of Pakistan’s Constitution provides for freedom of religion. No laws or government policies discriminate against Shias on the basis of religion. Broadly speaking, there is also little community prejudice against Shias: societal discrimination is largely confined to local nepotism, favouritism or patronage. The greatest threats for Shias in Pakistan are from militant groups and, at times, sectarian clashes (see ‘Violence’, below).
…
3.9Shias are well-represented among high-level professionals in Pakistan such as doctors and lawyers. Migrant Shia groups such as Turi Shias in Islamabad often own or work for small businesses. In more remote or poorer areas such as Quetta, the capital of Balochistan Province, there are limited employment opportunities regardless of ethnic or sectarian identity. Credible human rights groups have told DFAT there is no evidence of discrimination against Shias in gaining admission to the civil service, police, military, or private sector...
3.10DFAT assesses that Shias do not suffer greater economic disadvantage than other groups in Pakistan.
37.I accept that the applicant is an observant Shia Muslim and would attend mosques and religious processions upon his return and that he would seek to involve himself in the Abbas Trust; however in the light of the country information, I do not accept that this would lead to him facing a chance or risk of serious or significant harm that is more than remote. Given the country information about the improvement in his area, I do not accept that he would have to fight the Taliban as he has claimed. The applicant is also not a high profile professional and I do not consider he is of any particular adverse interest to the Taliban or anyone else based on his past activities. It is now several years since the applicant was in Pakistan and many years since the incident when he was shot. Whilst I have accepted that he was involved in the Abbas Trust, his involvement in the fighting was limited to providing supplies and taking injured to hospital. Whilst I have accepted that a couple of his cousins were killed, these events occurred considerable periods of time ago and the incidents did not involve the applicant (who continued to reside in Pakistan for a considerable period afterwards without being harmed) and I consider their occurrence does not mean that that [sic] the chance or risk of him being seriously harmed or significantly harmed by the Taliban or anyone else is more than remote.
38.Given the country information, I do not accept that he would not be able to access education, basic health care or earn a living in Pakistan as he has claimed. Whilst, I accept that there was a bomb that went off in the business area of Parachinar, given the totality of the country information, I do not accept that he would he would [sic] be prevented from setting up a business or finding work. Noting that the country information indicates that the road out of Parachinar remains open and there have been no major security incidents on the road in 2015, I do not accept that he would be subject to travel restrictions that would limit his ability to access goods, food, education, health care, and other services.
39.Based on the county information considered as a whole, I do not accept that the chance or risk he ill [sic] will be subject to sectarian violence is anything more than remote. I do not accept that in his individual circumstances that the chance or risk of him being seriously harmed or significantly harmed by the Taliban or anyone else on account of being a Turi Shia (and imputed of supportive of the West) is more than remote.
40.I also have taken into account that the applicant has a Computerised National Identity Card (which expires on 30 April 2017) that indicates that his home address is in Parachinar. I accept that he can renew this in Parachinar as he claims, but given the country information I do not accept that creates a chance or risk of serious harm or significant harm that is more than remote.
The Tribunal also found that the chance or risk the applicant would be seriously harmed or significantly harmed on account of being a returnee from a Western English speaking country was remote (CB 311 at [42]).
The Tribunal did not accept that the applicant’s psychological state or his vulnerability meant that by returning to Pakistan he would face an increased exposure to trauma such that he would face a real chance or real risk of either serious harm or significant harm (CB 31l at [43]). It found that there was not a real chance that any of the problems he might face accessing mental health care would be due to any systematic and discriminatory conduct by any actor for a reason under the Convention (CB 312 at [45]).
The Tribunal also did not accept that the applicant faced a real risk of being arbitrarily deprived of life, having the death penalty carried out on him or being subjected to torture. Nor did the Tribunal accept that there was a real risk the problems the applicant might face accessing mental health services would be as result of any intentional act or omission so as to constitute either cruel or inhuman treatment or punishment or degrading treatment or punishment (CB 312 at [46]).
The Tribunal concluded at [51]-[53] that it was not satisfied the applicant was owed protection and (at [54]) affirmed the delegate’s decision not to grant him a Protection visa (CB 312-313).
Extension of time
On 11 January 2018, the applicant filed an amended application for judicial review seeking, amongst other things, an extension of time to file his application to 8 September 2016. The amended application also particularised his ground of review.
At the hearing of this matter on 8 February 2018, the Court made orders by consent granting an extension of time for the applicant to file his application for review to 8 September 2016.
Jurisdictional error
In relation to jurisdictional error, the applicant raised one ground of review before this Court which was articulated in his amended application dated 11 January 2018.
The applicant claimed before this Court as follows:
The Administrative Appeals Tribunal
erred inconstructively failed to exercise its jurisdiction by failing to consider an integer of the applicant’s claims, namely that he fears serious and/or significant harm fromISIS/Islamic State in his home region of Parachinar.Particulars
a. In his statutory declaration dated 21 April 2016, the applicant claimed the Islamic State had recently made threats against Parachinar.
b. At his Tribunal hearing, the applicant claimed that his family were scared due to the recent threats from Islamic State; that Sunni families cou7ld bring Islamic State into Parachinar and that Islamic State kill Shia Muslims.
c. The Tribunal did not identify this distinct integer of the applicant’s claims at any point in its decision and failed to make a finding in relation to this integer.
In support of this ground, the applicant submitted in his Contentions of law and fact dated 11 January 2018:
a)The application raises one ground of review: that the Tribunal constructively failed to exercise its jurisdiction by failing to consider an integer of a claim; namely that the applicant feared serious and/or significant harm from Islamic State in his home region of Parachinar.
b)The Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42]). By failing to consider all the claims or their component integers the Tribunal fails to exercise its jurisdiction.
c)In this case, a distinct integer of the applicant’s claim to fear harm on the basis of his Shia religion was that he faced harm from Islamic State. The applicant claimed in his statutory declaration of 21 April 2016 and at his hearing before the Tribunal on 5 May 2016 that: within days of 21 April 2016 there had been threats from Islamic State towards Parachinar; Islamic State could enter Parachinar from Afghanistan with the assistance of Sunni families; and Islamic State would harm Shias.
d)The Tribunal did not identify this integer of the applicant’s claim at any point in its decision and did not make any express findings about this integer. A strong inference can be drawn from this that the integer was not considered (ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (Applicant WAEE) at [47]).
e)Although the applicant’s claim to fear harm from Islamic State is an integer of his claim to fear harm as a Shia Muslim, it is not subsumed by the Tribunal’s findings at [39] (CB 310-311) for the following reasons:
i)the integer is not identified at any point in the Tribunal’s decision;
ii)the integer concerns the emergence of a new actor, Islamic State, therefore the Tribunal’s reasoning based on the behaviour of the Taliban is not applicable; and
iii)the integer relates to specific threats that were made in April 2016 and therefore post-date the most recent country information relied on by the Tribunal (the DFAT Country Reports of 15 January 2016).
f)The Tribunal did not have a correct understanding of the bases for the applicant’s claim to fear harm as a Shia Muslim and was therefore unable to form the lawful state of satisfaction required by s.65 of the Act (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [34], see also [39]).
g)The Tribunal failed to consider this integer of the applicant’s claims resulting in a constructive failure to exercise jurisdiction.
First respondent’s submissions
In response, the first respondent submitted at paragraphs 6 to 13 of his Outline of submissions dated 1 February 2018:
a)It is clear from the Decision that the Tribunal considered the risk of harm to the applicant from sectarian violence involving the Taliban and other Sunni groups.
b)In assessing the applicant’s claims, the Tribunal referred to the applicant’s evidence that he feared harm from Sunnis generally and considered country evidence relevant to the period that the applicant lived in Parachinar (Decision at [29] and [31], CB 307).
c)In considering the current situation in Parachinar, the Tribunal relied on recent country information that referred to general ‘sectarian violence’ in the Federally Administered Tribal Areas (where Parachinar is located) and found that there was low level sectarian violence in the area, although the level of generalised violence varied (Decision at [35], CB 309).
d)On the basis of that country information, the Tribunal concluded that the chance of the applicant facing a risk of harm "by the Taliban or anyone else" was remote, first, in relation to his individual profile (Decision at [37], CB 310), and second, as a Turi Shia (Decision at [39], CB 310-311).
e)In conducting a cumulative assessment of whether the applicant had a well-founded fear of harm, the Tribunal found he did not face a real chance of persecution "at the hands of militant and sectarian groups, Sunnis generally or the state" (Decision at [49], CB 312).
f)The Court should infer, and there is no reason to doubt, that the reference to ‘anyone else’ or ‘militant and sectarian groups’ included Islamic State. The country information relied on by the Tribunal referred to general sectarian violence by Sunnis and a range of Sunni groups (see Decision at [29], [31], [35]-[36] and the country information referred to therein). It was the applicant’s own evidence to the Tribunal that Islamic State was another Sunni group connected to or developed from the Taliban.
g)In his Statutory Declaration dated 21 April 2016 (CB 257 to 273), the applicant’s first reference to Islamic State was in relation to the threat posed by "the Taliban and local Sunnis" (CB 269 at para 34). The second reference directly relates the emergence of Islamic State to previous Sunni Muslim groups in the following terms (CB 270 at para 36):
... I believe that what is known in Parachinar can be made known to Taliban and other Sunni groups very easily. These groups don’t any longer have an active face in Parachinar but there are threats now being made by Islamic State towards Parachinar. The people who are allied with Islamic State are the same people who were previously the Sunni Muslim from Parachinar who made war with us through the Taliban and Mujahideen ... (Emphasis added)
h)At the Tribunal hearing on 5 May 2016, in response to a comment by the Member regarding the threat posed by "the Taliban or any other sort of Sunni group", the Applicant then referred to Islamic State (Transcript p27 at 37-47). The Member later referred to potential harm by "the Taliban or Isis, or other sort of Sunni extremist groups, or Sunnis in general" to confirm that Islamic State was being considered as an additional sectarian group (Transcript p29 at 24-28). The applicant responded by referring to the threat from Sunnis generally and mentioned Islamic State in that context (Transcript p29 at 30-37 and 42-47).
i)The final reference to Islamic State was in the context of the applicant’s claim to fear harm as a person who lived in a Western country (Transcript p30 at 1-30), which was dealt with independently in the Decision (Decision at [41]-[42], CB 311). In any event, again, the reference to Islamic State is in the context of threats by Sunni groups generally.
j)In this context, it is clear that the Tribunal’s references to ‘anyone else’ or ‘militant or sectarian groups’ included Islamic State. Therefore, the Tribunal did not fail to consider the claim, or integer of claim, because it did in fact consider that claim upon a fair reading of its reasons. At the very least, any specific reference to Islamic State was not required due to these general findings Applicant WAEE at [47].
k)Notwithstanding that the country information relied upon predated what the applicant stated was a recent threat by Islamic State on Facebook,[3] it is for the Tribunal to determine what country information to rely upon and the weight to give it (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463). This is not a case where the Tribunal has ignored the applicant’s more recent information and made a decision on earlier, out of date material (SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at [41] (SZJTQ), confirmed by Minister for Immigration and Border Protection (2013) 230 FCR 431 at [75]). Rather, as the Tribunal stated (Decision at [35], CB 308-309):
... In making my findings, I have given considerable weight to the reports of the Australian Department of Foreign Affairs (DFAT) as these are authoritative, recent and they have been charged with the provision of advice to the Australian government. The substance of these reports was put to the applicant at hearing for comment. (Emphasis added)
l)It is significant that the substance of the country information referred to directly above was put to the applicant at the hearing, after he had provided his statutory declaration, giving him an opportunity to refute it.
m)The assertion of the applicant that Islamic State was a “new actor’’ (applicant’s Contentions, [43]), as though this renders the country information of January 2016 irrelevant or out of date, is without foundation.
n)The Tribunal was not under an obligation to directly refute, line by line, the evidence of the applicant regarding the alleged recent threat by Islamic State (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at [65]; MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 at [100] (MZYXP), nor simply to defer to the most recent information provided (SZJTQ at [42]). In any event, the information on the recent Facebook threat could not be described as significant considering it was an unsupported assertion of the Applicant in his statutory declaration (SZJTQ at [40]; MZYXP at [101]).
o)Further, or in the alternative, the applicant’s assertion to fear harm from Islamic State was not based on established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389) or probative material (Applicant WAEE at [45]) or was not a submission of substance (SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [82], see also [81]) such to give rise to an obligation on the Tribunal to independently consider a specific claim to fear harm from Islamic State (though the first respondent’s primary argument is that it in fact did so). The applicant simply asserted, in his statutory declaration and at the Tribunal hearing, that Islamic State had made recent threats in the context of describing general threats from Sunni extremists. It is significant that the applicant’s representatives made no reference to Islamic State at all in its post hearing submission dated 2 June 2016 (CB 280 to 296).[4]
[3] As outlined by the first respondent, the DFAT report relied upon was dated 15 January 2016, just over 6 months prior to the date of the Tribunal Decision: Decision, footnote 4 (CB 309). The Applicant stated that the Islamic State threat was issued on Facebook within days of him making his statement on 21 April 2016, a difference of 3 months.
[4] As further outlined by the first respondent, the post hearing submission referred to a fear of harm by "Sunni extremist groups" generally: CB 281.
Law
The Tribunal’s decision can only be set aside if it was affected by jurisdictional error (see ss.474 and 476 of the Act).
Jurisdictional error will occur when the decision is so erroneous that it is deemed to fall outside the scope of the power and function of the decision maker.
The ways in which a decision maker can fall into jurisdictional error were outlined by the High Court in Craig v State of South Australia (1995) 184 CLR 163 (Craig) and include:
a)identifying the wrong issue or asking the wrong question;
b)ignoring relevant material; and
c)relying on irrelevant material.
McHugh, Gummow and Hayne JJ reflected on Craig (above) in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, stating, relevantly at [82], as follows:
[82] It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):
… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. (citations omitted).
Further, in relation to what a Tribunal must consider when making a decision, Young J explained in MZWDG v Minister for Multicultural and Indigenous Affairs [2006] FCA 497 at [39]:
[39] On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.
The Court also notes the following comments made by the Full Court of the Federal Court in ApplicantWAEE:
[45] The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Allsop J in Htun v Minister of Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] said:
The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… (Emphasis added)
As noted at paragraph 6 above, the Court must, in this case, determine whether the Tribunal fell into jurisdictional error in the manner alleged by the applicant – namely by failing to consider an integer of his claims. The integer which the applicant claims the Tribunal failed to consider is that he feared serious and/or significant harm from Islamic State in his home region of Parachinar on the basis of his Shia religion.
Consideration
It is not disputed that the Tribunal does not, anywhere in its decision, make reference to the Sunni entity referred to as Islamic State or ISIS. In effect, the argument put to this Court by the first respondent was that the Tribunal did not need to specifically refer to Islamic State as the Tribunal was clearly referencing the applicant’s concerns about Islamic State when it referred to the possible threat posed to Shia Muslims in Pakistan by Sunni militant groups generally – with Islamic State being included in the collection of militant groups referred to by the Tribunal.
The Court notes that the applicant’s claim that he faces significant harm from Islamic State if returned to Pakistan was put to the Tribunal by him and/or his legal representatives in general terms. This is detailed by the first respondent (above at subparagraph 47(g) above). The Court has reviewed the summary of evidence cited by the first respondent and adopts it as accurate.
Notably, the applicant linked the threat from Islamic State to the threat from “Taliban and other Sunni groups” (CB 270 at para 36). In doing so, it is evident that the applicant drew a connection between Islamic State and the term “Taliban and other Sunni groups”. He, in effect, subsumed Islamic State into the general category of other Sunni extremist groups and did so in a context in which he alleged that these Sunni groups were, collectively, a threat to his safety.
This is best evidenced by the following exchange between the Tribunal member and the applicant at the Tribunal hearing of 5 May 2016 (Transcript p29 at 24-28):
MEMBER: So I mean, I may think that, you know - that the chance of you being seriously harmed or significantly harmed by the Taliban or Isis, or other sort of Sunni extremist groups, or Sunnis in general, in your home area is remote, and not a real chance. So I’m interested if you have any comments about the relation.
[THE APPLICANT]: Yes. Like, there is returned - the family have returned back to Parachinar - the Sunnis family which we have removed from there. So, like, if you check the history of, like, these Taliban was brought by these Sunnis people, the families, and when we kick them out from the Parachinar we was happy. Like, we was not inside Parachinar, it was - like, we was thinking that my family is safe. We are having war on the border of Parachinar but not inside. Now they’re again bringing these family inside and what is the guarantee tomorrow they will bring IS with them?
In this context it is clear that both the applicant and the Tribunal acted on the basis that reference to “the Taliban” or “other sort of Sunni extremist groups”, or “Sunnis in general” includes Islamic State.
Further, when deciding that the risk of harm the applicant would face if returned to his home region of Parachinar was remote, the Tribunal expressly referred to the applicant’s risk of harm as a result of “sectarian violence” (CB 310-311 at [39]), or “Taliban or anyone else” (CB 310-311 at [39]).
This occurred after relying on the reports of the Australian Department of Foreign Affairs (DFAT) to inform itself of that risk (CB 308 at [35]). The DFAT reports upon which the Tribunal based its decision were the most cogent and accurate information available to it.
The fact that the DFAT reports do not specifically refer to Islamic State or “ISIS” is not relevant in a context such as this where the applicant himself specifically drew a connection to Islamic State and the other groups specifically mentioned in those reports.
Having regard to the above, the Court finds that a fair reading of the Tribunal’s references to the applicant’s risk of harm from sectarian violence, Sunnis or Sunni groups are inclusive of a reference to Islamic State. This is an example of the Tribunal dealing with a claim by making a finding of a greater level of generality: Applicant WAEE at [47].
The Court does not accept that the Tribunal failed to consider a core integer of the applicant’s claims – namely that he feared serious and/or significant harm from Islamic State in his home region of Parachinar – in circumstances where:
a)the Tribunal specifically turned its mind to the risk of harm to the applicant from sectarian violence, the Taliban, Sunnis or Sunni groups in the applicant’s home region of Parachinar;
b)the Tribunal informed itself of the risk faced by the applicant if returned to his home region of Parachinar by utilising the relevant reports of the Australian Department of Foreign Affairs. Those reports do not support the applicant’s argument that the applicant would risk harm throughout Pakistan by extremist Sunni groups.
c)it is clear on the evidence that references to “sectarian violence”, “Sunnis” or “Sunni groups” indicate, by implication, “Islamic State”; and
d)both the Tribunal and the applicant understood the implication of those references to include Islamic State.
The Court finds that the Tribunal adequately considered and addressed the integer of the applicant’s claim regarding the risk he feared from Islamic State, even though that particular extremist Sunni group is not mentioned in the Tribunal’s written decision.
Accordingly, the Court finds no jurisdictional error in relation to this ground of review.
Conclusion
For the reasons above, the applicant’s application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 2 August 2016 is dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 2 March 2018
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