CPI16 v Minister for Immigration

[2017] FCCA 2867

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2867

Catchwords:
MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal erred by failing to exercise its jurisdiction – with the Tribunal misconstrued the fear of significant harm – whether the Tribunal failed to comply with a mandatory requirement under s.424A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 430

Cases cited:

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; ‘2001] HCA 30

Applicant: CPI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2490 of 2016

Judgment of: Judge Smith

Hearing date: 18 October 2017

Date of Last Submission: 18 October 2017

Delivered at: Sydney

Delivered on: 18 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S Burnett, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2490 of 2016

CPI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Pakistan, who arrived in Australia in February 2010 on a student visa.  He subsequently made an unsuccessful application for a further student visa and remained unlawfully in Australia until he lodged an application for a protection visa on 11 December 2013.  The claims made by the applicant in support of that application are set out in [7] of the respondent’s written submissions, which I set out below:

   (a)     the applicant is a member of the Ahle-e-tashi, a prominent, influential, and financially successful Shia family in the Rawalpindi area in Pakistan;

   (b)     his brother's garment business was robbed and his brother was kidnapped by members of the Sunni extremist group Ahle-e-Sahaba sometime in early 2011. His family sold everything they owned in order to pay a ransom at the time (which prevented them being able to support his studies financially);

   (c) the applicant's brother was subsequently killed in a shooting incident carried out by Sunni extremists from a group known as Sipah Sahaba in November 2011 ;

   (d)     the applicant was the victim of a violent attack in Pakistan before leaving for Australia in 2010;

   (e)the applicant's family have relocated from Rawalpindi and he has been told not to return by his father;

   (f)the applicant fears that he will be targeted by Sunni extremists if he returns to Pakistan because he is a member of a prominent Shia family who have received threats of harm and already had one family member killed.

   (Emphasis in original)

2. On 5 January 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.  The applicant applied to the Refugee Review Tribunal[1], as it was then known, for review of that decision.  In June of 2015, the Administrative Appeals Tribunal (Tribunal) took on the functions of the Refugee Review Tribunal and completed the review of the delegate’s decision. 

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. On 16 August 2016, the Tribunal made a decision to affirm the decision of the delegate.  It found that the applicant overall was not a credible witness.  In this respect, the Tribunal found in particular that his delay in making an application for a protection visa, some of the inconsistencies in his accounts when discussing his claims, and his failure to provide documents in support of those claims that he had said that he could provide, all significantly undermined his credibility.  It may be noted that one of the matters that the Tribunal did not take into account in making that credibility finding, were some variations in the dates that the applicant had given in his claims and evidence in support of his visa application. 

4. In light of the findings about credibility, the Tribunal did not accept that a number of the events claimed by the applicant had actually occurred.  Those included a robbery and threatening telephone calls received in 2011.  The Tribunal accepted that the applicant’s brother had died in November 2011 but did not accept that he was killed because he was a Shia or because of his prominence in the Shia community. 

5. The Tribunal was not satisfied that the applicant would be seriously harmed in Pakistan because he was a Shia, or a Shia from a prominent family in Rawalpindi, or a member of his deceased brother’s family. The Tribunal accepted the applicant’s family had left Rawalpindi after their assets, including the family home, had been sold but did not accept that they had left because they were under threat from a Sunni extremist group. For those reasons, the Tribunal found that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Act). 

6. It then turned to consider the criterion in sub-s.36(2)(aa) of the Act, which it referred to as the complementary protection claim. In this respect the Tribunal referred to what it understood by the term “significant harm” referred to in sub-s.36(2)(aa). At [79] of its reasons, the Tribunal said:

   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

7. The Tribunal noted that it had accepted that the applicant was the victim of a random attack with no known motivation before he came to Australia. However, it found that it was not a targeted attack but one of generalised violence, which is one faced by the population of Pakistan generally. Otherwise it applied its findings made in connection with the s.36(2)(a) criterion to its consideration of the complementary protection claims and found that there were no substantial grounds for believing that the applicant would be at real risk of significant harm for any reason, if he returned to Rawalpindi in Pakistan. For that reason, it found that the complementary protection criterion was not satisfied. Accordingly the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

Consideration

1. The applicant seeks judicial review of the Tribunal’s decision.  In order to be granted the relief he seeks, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. 

2. In the application filed on behalf of the applicant it raises three grounds addressed to the question of jurisdictional error.  The applicant, who appeared unrepresented at the hearing, was asked to explain these grounds but could not do so.  That is not meant as any criticism of the applicant but to highlight that during his submissions he stated that a lawyer had prepared the document for him, and that he had in fact never seen it. 

3. Perhaps more importantly, the applicant denied having signed the application, in spite of the fact that appears to be his signature on the application.  That signature, when it is compared to a signature of the applicant on his protection visa application which is in evidence before the Court, is clearly not his signature.  This raises a serious concern about the propriety of the person who at least told the applicant that he was a lawyer and would prepare his application on his behalf.  In spite of those serious concerns, there is nothing that the Court can do on the evidence before it, for present purposes and it remains to consider both the grounds raised in the application, as well as the matters raised orally by the applicant today. 

First Ground

1. The first ground in the application is that the Tribunal constructively failed to exercise its jurisdiction.  This ground is explained in the particulars to relate to documents said to have been provided by the applicant to the Tribunal to corroborate his claims.  The problem is that the applicant did not provide documents to the Tribunal to corroborate his claims and so the ground is entirely baseless. 

Second Ground

1. The second ground is that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Act. As I have observed, the Tribunal explained what it understood by the term “significant harm” in its reasons. That explanation, which is found at [79] of its reasons, is consistent with a proper understanding of that term. This ground too is baseless and is rejected.

Third Ground

1. The third ground is that the Tribunal failed to comply with s.424A of the Act. That provision requires the Tribunal to give particulars to the applicant of information it considers would be the reason, or part of the reason, for the decision under review. The information said to give rise to this obligation is not identified in the application, and I can identify only information that was either given by the applicant for the purposes of the review, or information which falls within the general description of country information. As such, the information that that formed part of the reasons for the decision, fell within an exclusion to the obligation found in s.424A(3) of the Act. In other words, there was no obligation that arose under s.424A(1) and therefore no breach of that provision by the Tribunal.

2. For those reasons, the grounds in the application have not been made out. 

3. I asked the applicant to explain what he said was wrong with the Tribunal’s decision. He mentioned two matters. First, was that he told the Tribunal that his brother was living in Denmark. I do not entirely understand what error the applicant says the Tribunal made in this respect. However, given that there is no reference, on my reading of the Tribunal’s reasons, to anything about Denmark, it may be, that the applicant is alleging that the Tribunal erred by not making findings about Denmark. If I accept what the applicant says about what he said to the Tribunal about Denmark, I do not see that there is any jurisdictional error. The statement of reasons prepared by the Tribunal is prepared according to the obligation under s.430 of the Act. It requires the Tribunal, amongst other things, to set out in a written statement its material findings of fact and to refer to the evidence on which those findings are based.

4. I infer from the absence of any reference to Denmark in the Tribunal’s reasons, that it did not consider that anything about Denmark was material to its decision.  The High Court explained in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 that what the Tribunal considers to be material may reveal that it has misunderstood its task, or has otherwise failed to exercise its jurisdiction. That is not the case here. While it was important to the applicant’s case, that the applicant’s family had left Rawalpindi, it was no part of his case that any member of his family went to Denmark as opposed to some other country. The Tribunal accepted the fact that the applicant’s family had left Rawalpindi, and in doing so dealt with an important aspect of the applicant’s claims. For those reasons, I consider the failure by the Tribunal not to refer to, or make a finding about Denmark, did not impact upon its proper exercise of jurisdiction to review the delegate’s decision.

5. The second matter raised by the applicant today was that there was some variation in his evidence concerning dates.  The Tribunal referred to this on a number of occasions in its statement of reasons.  It is clear, that the Tribunal asked the applicant about this variation in dates at the hearing conducted by it.  However, there are two reasons why this does not give rise to any jurisdictional error.  The first and most important, is that the variation in dates might be something which affects the credit of an applicant, which in turn is something for the Tribunal to decide and not a matter for the Court.  There is no doubt that inconsistencies in evidence can form a rational basis for findings on credit. 

6. Secondly, and in any event, as I have mentioned earlier, the Tribunal did not take into account the variations in the applicant’s evidence concerning the dates of events claimed to have occurred by him in making its findings of credit.  In light of that, even if the Tribunal had made some mistake, that mistake did not affect its exercise of jurisdiction and so did not constitute jurisdictional error.  .

CONCLUSION

1. The applicant has not established that the decision is affected by jurisdictional error, and the application must be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     23 November 2017