Coy19 v Minister for Immigration

[2020] FCCA 429

FEDERAL CIRCUIT COURT OF AUSTRALIA

COY19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 429

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal misconstrued or failed to consider the applicants’ claims or an integer thereof – whether the Tribunal misconstrued or failed to apply the relevant law or the correct law or test – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

First Applicant: COY19

Second Applicant: CPA19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1623 of 2019

Judgment of: Judge Street

Hearing date: 27 February 2020

Date of Last Submission: 27 February 2020

Delivered at: Sydney

Delivered on: 27 February 2020

REPRESENTATION

Counsel for the Applicants: Mr P Reynolds

Solicitors for the Applicants: Direct Access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: AGS

ORDERS

1. Leave is granted to the applicants to rely on the amended application filed on 17 October 2019.

2. The amended application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $5,400.00.

DATE OF ORDER: 27 February 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1623 of 2019

COY19

First Applicant

CPA19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 June 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) visas (“Protection visas”).

2. The applicants, in order of the proceedings, are a daughter and mother. The applicants were found to be citizens of Pakistan. On 4 March 2015, the applicants arrived in Australia.

3. On 27 March 2015, the applicants applied for Protection visas. The applicants claimed to fear harm by reason of their family association with the Muttahida Quami Movement (“MQM”) and by reason of alleged harassment and extortion in relation to a business and by reason of being single women living alone.

4. On 6 May 2016, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas.

5. On 25 May 2016, the applicants applied to the Tribunal for review of the Delegate’s decision.

6. The applicants were invited to a hearing on 5 April 2019 and a resumed hearing on 3 May 2019. The applicants attended on those dates to give evidence and present arguments. The applicants were represented by their migration agent on those dates and evidence was also led from the second applicant’s son being the brother of the first applicant.

7. The Tribunal in its reasons identified the background to the Protection visa applications.

8. The Tribunal summarised the applicants’ claims.

9. In particular, the Tribunal referred to the applicants having been living alone in Pakistan and suffering problems because their father/husband and brother/son were involved in the MQM. The father/husband is now deceased. The brother/son is alive. It was identified that the brother/son was able to look after the applicants and that the brother/son is no longer in Pakistan.

10. The Tribunal also referred to the applicants’ claims that they were continuously persecuted from about 2010 to 2015 because of her family’s political affiliations with MQM. The Tribunal referred to the applicants’ assertion that they are persecuted by political rivals, by military and paramilitary groups such as Rangers.

11. The Tribunal referred to the evidence given at the hearings before the Tribunal. The Tribunal referred to first applicant giving evidence in relation to there being two or three different groupings in MQM and her family belonging to a grouping also described as the MQM London group or the Altaf Hussain group.  The Tribunal referred to the evidence given by the first applicant about demands for money, sometimes by people in Rangers in people in uniforms and sometimes by people in plain dress. The Tribunal referred to the evidence given by the first applicant that her paternal aunt’s husband was the right-hand man of Altaf Hussain.

12. The Tribunal referred to the evidence given by the second applicant in respect of the problem with women’s rights in Pakistan and the harassment that was tendered as being suffered because of the family’s involvement with MQM.

13. The Tribunal referred to the evidence given by the second applicant’s son being the brother of the first applicant.

14. The Tribunal referred to the post-hearing submissions provided on behalf of the applicants by the applicants’ representative. The Tribunal expressly identified the allegation of serious harm, both psychological and physical, and possible death at the hands of strangers who had been bothering the first applicant and the second applicant.

15. The Tribunal accepted that various family members of the applicants, including the applicants’ father/husband, brother-in-law/uncle and brother/son, all associated with MQM London group.

16. The Tribunal referred to members of the applicants’ family having been granted asylum in the UK and USA, although, on the available evidence, it was not clear on what grounds that asylum was granted. The Tribunal was prepared to accept that it was on the account of their actual or imputed MQM involvement.

17. The Tribunal accepted that the second applicant’s son has maintained some involvement with the MQM London group in Australia and London.

18. The Tribunal referred to raising with the first applicant its concerns in respect of whether she overstated or exaggerated her claims in respect of having worked with the MQM London group. The Tribunal referred to the first applicant’s claims of attendance at a protest in Canberra, attending MQM charity functions in Melbourne on four or five occasions and that she was involved in MQM women’s affairs in Karachi.

19. The Tribunal accepted that the first applicant was a supporter of the MQM London group in Karachi. The Tribunal, however, was not satisfied that there was evidence to support that she was actively involved in the party or a member of the MQM in Karachi.

20. The Tribunal found the first applicant’s evidence to the Delegate to be at odds with her evidence to the Tribunal and that the differences were not adequately explained. The Tribunal found that the first applicant would have informed the Delegate of her involvement in the women’s wing in Karachi if it had been significant.

21. The Tribunal concluded that while the first applicant may have been a sympathiser of the MQM London group she played no significant or identifiable role in the party herself while living in Karachi.

22. The Tribunal explored with the first applicant her ongoing support for Altaf Hussain. The Tribunal identified the first applicant’s claim that she would no longer exercise a vote for Altaf Hussain but will continue to be a supporter of the MQM London group charity works, particularly charity work for women.

23. The Tribunal accepted that the applicant joined the MQM London group women’s wing in Australia in 2015 and participated in one political protest in Canberra and attended some women’s wing activities in Melbourne.

24. The Tribunal referred to the applicants’ claims that they were continuously persecuted from 2010 to 2015. The Tribunal did not accept that to be the case and provided reasons in support of the same, including the applicants’ evidence not being clear and convincing and referring to the different accounts of what transpired and the applicants’ claims that they changed address being contrary to the evidence that they lived together in their home some ten years before coming to Australia. The Tribunal found that the fact that the applicants were prepared to remain living in their home for the five year period it is claimed that the events occurred to be problematic evidence.

25. The Tribunal also referred to implausibility of the applicants’ claims. The Tribunal could see no reason why the applicants would have been harassed on account of their uncle/brother-in-law for the period they claimed. The Tribunal also found that there would have been little to be gained from continuously harassing and threatening the applicants over their uncle/brother-in-law’s MQM links.

26. The Tribunal was not persuaded that the Rangers were involved in the extortion attempts the applicants encountered in Karachi. The Tribunal noted that, until the Tribunal proceedings, there was no mention of the Ranger’s involvement in the extortion attempts. The Tribunal was not satisfied that the Rangers had come to the applicants’ door between 2010 and 2015 searching for their brother/son given that he played no significant role in MQM politics in Karachi for over twenty-five years or in connection with their uncle/brother-in-law. The Tribunal did not accept that persons from the Rangers or in Rangers uniforms were involved in any extortion attempts on the applicants.

27. The Tribunal was not persuaded that the applicants were continuously harassed for money and/or information about their brother/son or their uncle/brother-in-law or because of their own MQM involvement at their home in Karachi.

28. The Tribunal referred to the applicants’ claim in relation to a marriage hall business being the subject of a requirement to pay extortionists money. The Tribunal was prepared to accept this claim given it is reported that protection rackets had long existed in Karachi and that a wide range of businesses are affected by extortion. The Tribunal found that any payments that made were in relation to extortion attempts on the business rather than on the applicants themselves.

29. The Tribunal referred to the applicants’ claim that, in 2018, Rangers demolished the marriage hall premises because of the family’s MQM connections. The Tribunal did not accept that the current state of the marriage hall business is a result of action taken by the Rangers. The Tribunal also found that there was no evidence to support the destruction of the marriage hall business by groups politically opposed to the applicants or their family.

30. The Tribunal found that the applicants had embellished their claims in order to achieve a migration outcome.

31. The Tribunal turned to the issue of whether there was a real chance the applicants will suffer serious harm if they return to Karachi from either the MQM members or military or paramilitary groups including Rangers.

32. The Tribunal noted that the applicants claimed the reason they will be targeted is because of their family’s affiliation to the MQM London group. The Tribunal did not accept that the applicants were continuously harassed and extorted at their home in Karachi prior to departing Pakistan.

33. The Tribunal accepted that the marriage hall business was affected by some extortion and, on the basis of country information, did not discount the possibility that criminal elements in the MQM could have been involved. The Tribunal found, however, that the business is no longer operational and, therefore, further attempts to obtain money through extortion would appear to be fruitless. In these circumstances, the Tribunal identified the chance of any further extortion attempts to be remote.

34. The Tribunal referred to Department of Foreign Affairs and Trade (“DFAT”) country information concerning the low risk of violence faced by members of MQM groups from militant groups and criminal elements in Karachi and the risk having significantly reduced since security operations that began in 2013.

35. The Tribunal found the chance of the Pakistani authorities and/or rival MQM members harming the applicants because of their links to their uncle/brother-in-law to be remote.

36. The Tribunal found that the second applicant, given her age and evidence in respect of her past and present political involvement, would not engage in any public support for the MQM if she returns to Karachi.

37. The Tribunal accepted that the first applicant may wish to continue to support some charitable activities of the MQM. The Tribunal considered the chance of the first applicant participating in events organised by the MQM London group on return to Karachi and thereby attracting adverse attention from the Rangers to be remote.

38. The Tribunal referred to country information concerning political raids and criminal activities. The Tribunal was not satisfied that the applicants’ connection to their uncle/brother-in-law will result in any future serious harm.

39. The Tribunal concluded that it was significant that the applicants’ family’s affiliations with the MQM had not resulted in the applicants being seriously harmed in the past. The Tribunal could see no reason why the applicants would be harmed in the future for reason of these affiliations.

40. The Tribunal was not satisfied that there was a real chance the applicants will be seriously harmed, including the first applicant being “dishonoured”, by MQM members or other political or criminal groups or the Rangers or any other state agency if they return to Karachi now or in the reasonably foreseeable future for reason of their links to the MQM London group.

41. The Tribunal referred to the applicants’ claim to fear harm as single women living alone in Karachi. The Tribunal referred to the applicants’ claim of feeling unsafe with no one to protect them. The Tribunal referred to the potential violence identified against women in country information.  The Tribunal also referred to the applicants’ claims as to there being no safety in Pakistan and alleged the state not having enough resources to cope with all the problems.

42. The Tribunal accepted that the applicants were living alone in Karachi prior to coming to Australia and that they now have no remaining close relatives in Pakistan.

43. The Tribunal referred to the evidence given by the applicants in relation to whether they had experienced harm on account of their gender and/or because they were women living alone. The Tribunal referred to the applicants’ evidence that, other than harassment experienced in their home when people tried to extort money from them, nothing else had happened to them.

44. The Tribunal referred to other country information. The Tribunal identified that the applicants lived alone in Karachi until they departed almost eleven years after the death of their father/husband. The Tribunal identified that it had rejected several claims of past harm with the exception of some extortion attempts on the applicants’ business.  The Tribunal found that neither of the applicants have claimed any past harm on account of being women or single women living alone in Karachi. The Tribunal, in that regard, noted that the applicants could not articulate any specific fears about returning to Karachi for this reason alone.

45. The Tribunal referred to other country information. The Tribunal was not satisfied that there was sufficient information in the applicants’ particular circumstances to conclude that there is a real chance the applicants will suffer serious harm on returning to Karachi purely for reason of being women or single women living alone.

46. The Tribunal referred to the applicants’ claims of having no means to live in Karachi. The Tribunal accepted that the applicants would not be able to rely upon the income of the family’s marriage hall business. The Tribunal identified that the first applicant worked in a managerial role for a significant period of time and that there is nothing before the Tribunal to indicate that she could not obtain similar or related work if she returns to Karachi. The Tribunal also noted that the applicants had received financial support from their brother/son in Australia and that there was no suggestion that he would withdraw that support if they returned to Karachi.

47. The Tribunal was not persuaded that the applicants would be unable to resume living in their former home. The Tribunal found that there was nothing to suggest that the house is unliveable or could not be returned to a liveable condition.

48. The Tribunal was not satisfied that the applicants will have no means of living in Karachi if they returned now or in the reasonable foreseeable future. The Tribunal found that there was not a real chance that the applicants would suffer serious harm if they returned to Karachi in relation to their ability to subsist.

49. Having considered the applicants’ claims and evidence individually and cumulatively, the Tribunal was not satisfied that the applicants are persons in respect of whom Australian protection obligations under s.36(2)(a) of the Act.

50. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Pakistan from Australia, there is a real risk they would suffer significant harm in accordance with s.36(2)(aa) of the Act.

51. Accordingly, the Tribunal affirmed the decision under review.

Grounds in the Amended Application

1. The grounds in the amended application are as follows:

   In substitution of the grounds identified in the original application, the grounds of the application are as follows:

   1. The Second Respondent (“Tribunal”) engaged in jurisdictional error by misconstruing or failing to consider a claim or component integer thereof.

   Particulars

   (a) There was a claim before the Tribunal that the Applicants had a well-founded fear of persecution on the basis that they were women, single women who lived alone, or single women who had no family or support network (Claim);

   (b) A component integer of the Claim was a professed fear by the First Applicant of serious harm (psychological, physical and possibly death) at the hands of strangers who had been ‘bothering’ her and her mother (referred to elsewhere alternatively as harassment or extortion). The First Applicant claimed, with reference to this fear, that she was unsafe as a woman with no family and support networks in Pakistan (CB493.7);

   (c) The Tribunal misconstrued or failed to deal with the component integer of the Claim referred to in subparagraph (b). Rather, the Tribunal concluded that neither Applicant articulated any specific fears about returning to Karachi on account of being women or single women living alone in Karachi (Decision, [101]).

   2. The Tribunal engaged in jurisdictional error by misconstruing or failing to apply the correct law or test in relation to the Claim.

   Particulars

   (a) The Tribunal concluded that it was not satisfied that there was sufficient information to conclude that there was a real chance that the Applicants would suffer serious harm on return to Karachi purely for reason of being women, or single women living alone (Decision, [104]);

   (b) In so doing, the Tribunal misconstrued or failed to apply the correct test, being whether the essential and significant reason for the harm was their membership of a particular social group, not whether it was purely/or this reason;

   (c) Further and in the alternative, the Tribunal engaged in jurisdictional error by either assuming that the extortion and destruction of business it accepted the Applicants had been subject to in the past (see Decision, [101] [105]-[106]), were incapable giving rise to a well founded fear of serious harm in the reasonably foreseeable future, or by otherwise failing to consider or deal with this possibility.

   3. The Tribunal engaged in jurisdictional error by failing to consider, or by misconstruing or failing to apply the correct law or test in relation to, the Applicants’ complementary protection claim.

   Particulars

   (a) There was a claim before the Tribunal that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed from Australia to Pakistan, there was a real risk that either or both of them would suffer significant harm (Complementary Protection Claim);

   (b) The Tribunal rejected the Complementary Protection Claim on the basis of its findings concerning the Claim (Decision, [111]). In doing so, it engaged in jurisdictional error because the questions it was required to ask itself in the lawful disposition of the Complementary Protection Claim were not wholly dealt with by its findings concerning the Claim.

   4. The Tribunal engaged in jurisdictional error by failing to consider the First Applicant’s sur place claim or by failing to ask itself the correct question.

   Particulars

   The Tribunal failed to ask itself whether the First Applicant’s conduct in Australia in respect of the MQM would give rise to a well-founded fear of persecution on the part of the First Applicant in the reasonably foreseeable future upon her return to Pakistan, being part of the First Applicant’s claim.

Ground 1

1. In relation to ground 1, Mr Reynolds of counsel on behalf of the applicants took the Court to the applicants’ statements, interviews and submissions in seeking to advance that there was a claim or an integer of a claim which was misconstrued or not considered by the Tribunal in relation to the fear of the first applicant of incurring serious harm, being psychological and physical, at the hands of strangers together with the applicants’ claims concerning being women or single women living alone as well as fear of extortion.

2. In particular, Mr Reynolds submitted that the Tribunal’s reasons in relation to the MQM affiliation and the adverse finding in that regard did not address the applicants’ fear of harm at the hands of strangers.

3. The Tribunal expressly referred to the submission concerning the risk of psychological and physical harm at the hands of strangers who had been bothering the applicants at paragraph 62 of its reasons.

4. The Tribunal made adverse findings in relation to the claims of continuous harassment. Those adverse credibility findings were open to the Tribunal. There is no basis to find that the Tribunal misconstrued the applicants’ claims and evidence or that the Tribunal failed to make findings dispositive of the applicants’ claims to fear harm by reason of their affiliation with the MQM and by reason of being women and being single women who live alone.

5. To the extent that it is submitted that the Tribunal did not make a finding dispositive of the applicants’ submission concerning a claim to fear harm from strangers, it was clearly subsumed within the adverse finding made by the Tribunal in paragraph 104 of its reasons as the Tribunal had already referred to that submission. Furthermore, in paragraph 102 of the Tribunal’s reasons, the Tribunal refers to having carefully considered the applicants’ claims and evidence, both individually and cumulatively.

6. No jurisdictional error arises by reason of the argument advanced concerning the applicants’ claimed fear of harm at the hands of strangers.

7. Mr Reynolds further submitted that there was an error in relation to an integer of the applicants’ claims in relation to the exposure to extortion which had not been the subject of a dispositive finding. Contrary to Mr Reynold’s submission, it is the position that the Tribunal clearly made findings rejecting the applicants’ claims in respect of continuous harassment and extortion and made a finding that there had been some extortion in respect of a business that now no longer operated. There was no need, in those circumstances, for the Tribunal to make any other finding. There was no misconstruction or failure to deal with an integer of the applicants’ claims in this regard.

8. The third particular advanced in relation to ground 1 was an error by the Tribunal in considering the integers of the applicants’ claims and referred to paragraph 101 of the Tribunal’s reasons in which the Tribunal referred to specific fears in the context of whether the applicants had encountered past harm on account of being women or single women.

9. The Tribunal was, in that regard, summarising what had occurred at the hearing. There is no basis to find that the Tribunal was incorrect or inaccurate in its statement concerning the absence of specific fears about returning to Karachi for this reason alone. Nor is that paragraph a basis upon which the Court should find that the Tribunal incorrectly applied the relevant test in determining whether or not there was a real risk or real chance of serious harm or significant harm. The Tribunal in that regard correctly identified the relevant law and its reasons must be read as a whole and without a keen eye for error.

10. Mr Reynolds also submitted that there was a failure by the Tribunal in its reasoning at paragraph 101 to consider whether the applicants would be subject to extortion attempts in the future. Mr Reynolds submitted that there had been a failure by the Tribunal to deal with all component integers of the applicants’ claims in this regard.

11. The Tribunal made a finding in relation to the extortion attempts, rejecting the applicants’ claims in respect of past extortion with the exception of some extortion attempts on their business. In that regard, the Tribunal found that the marriage hall business had been destroyed and is not being conducted.

12. In these circumstances, there was no requirement for the Tribunal to make some further finding in respect of future extortion attempts. No other claim was advanced or clearly arose on the material before the Tribunal to fear future extortion attempts in relation to the first applicant returning to her managerial role.

13. On the face of the Tribunal’s reasons, the Tribunal made dispositive findings that were open to the Tribunal in respect of all the integers of the applicants’ claims.

14. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Reynolds submitted that the Tribunal’s reasons at paragraph 104, where the Tribunal referred to the language “purely for reason of being women, or single women living alone”, was too stringent a test and did not reflect a correct application of whether there was a real chance or real risk of significant harm or serious harm.

2. The Tribunal’s reasons are not to be read with a keen eye for error. Notwithstanding the submission by Mr Reynolds to the contrary, it is clear that if the word “purely” had not been there such an argument could not have been advanced. The word “purely” is not a basis upon which the Tribunal should be found to have failed to apply the correct test when the Tribunal correctly identified the relevant law and in light of the correct application of the test as identified at paragraphs 110 and 111 of the Tribunal’s reasons.

3. Mr Reynolds also submitted that the Tribunal was required to consider the motive for the extortion. In circumstances where the Tribunal found that the applicants’ business was no longer conducted and where the Tribunal rejected the applicants’ claims of continuous extortion and found that the only extortion was connected to the business, there was no requirement for the Tribunal to further deliberate upon the motive. Further, it is apparent that the Tribunal made findings in that regard referring to further attempts of extortion being fruitless given that the business was no longer in operation.

4. The Tribunal’s reasons reflect a finding that the extortion was on the applicants’ business and not on the applicant themselves. That finding was open to the Tribunal and does not reflect any error of the kind alleged. Given that the business was no longer in operation, there was no need to address the claim in relation to extortion.

5. Regarding whether the Tribunal failed to apply the correct test in relation to whether the essential and significant reason for the harm was by reason of their membership of a particular social group, the Tribunal’s finding that it was extortion on the business rather than the applicants themselves means that there is no such error of this kind.

6. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, Mr Reynolds submits that the Tribunal failed to properly consider or misapplied the correct test in relation to complementary protection. The Tribunal was entitled to take into account the adverse findings made under the 1951 Refugee Convention in considering whether or not there was a real risk of significant harm. The Tribunal did not make findings of a kind that gave rise to a need for independent evaluation under the complementary protection grounds of the applicants’ claims.

2. The Court does not accept that the Tribunal took into account irrelevant considerations, misconstrued the law or failed to correctly apply the law in relation to complementary protection. The Tribunal’s reasons reflect the correct identification of the law and the adverse findings in relation to complementary protection were open for to the Tribunal for the reasons identified by the Tribunal, which picked up the reasons concerning the applicants’ claims under the 1951 Refugee Convention.

3. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, Mr Reynolds submitted that the Tribunal failed to consider whether the first applicant was a refugee sur place by reason of her conduct in Australia. It is apparent from the Tribunal’s reasons, as summarised above, that the Tribunal referred to the activities of the first applicant in Australia and that the adverse findings by the Tribunal clearly subsumed those activities.

2. The Tribunal took into account country information having regard to the evidence and concluded that it was not satisfied that there was a real chance the applicants would be seriously harmed now or in the reasonably foreseeable future for reason of their links to the MQM London group. That finding included the first applicant’s claim that she had engaged in activities in Australia.

3. In these circumstances, on a fair reading of the Tribunal’s reasons as a whole, there was no failure by the Tribunal to consider the first applicant’s activities in Australia and no basis to find that the Tribunal had incorrectly identified the law and applied an incorrect test or asked itself the wrong question.

4. No jurisdictional error is made out by ground 4.

5. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 27 February 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  20 March 2020