CPJ19 v Minister for Immigration - [2020] FCCA 3015

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPJ19 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3015

Catchwords:
MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal – where the applicant claimed he could not live in his home country with Ms D because they are of different religions – where the applicant alleged the Tribunal asked itself a wrong question – where the applicant claims the Tribunal should have asked whether the separation of family members could constitute “significant harm” – where the Tribunal was concerned about an air of artificiality and contrivance in the applicant's claims – where the Tribunal was not satisfied there was any genuine intention for the applicant to live together with Ms D – where the conclusion was open to the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2A), 65

Pakistan Citizenship Act, 1951.

Cases cited:

Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145; [2012]

FCAFC 141

GLD18 v Minister for Home Affairs [2020] FCAFC 2

Applicant:

CPJ19

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 18 of 2019

Judgment of:

Judge Young

Hearing date:

21 February & 11 September 2020

Date of Last Submission:

11 September 2020

Delivered at:

Darwin

Delivered on:

6 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Jones

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Liveris

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 18 of 2019

CPJ19

Applicant

And

MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 May 2019 affirming a decision of the Minister's delegate to refuse a protection visa to the applicant under s. 65 of the Migration Act (“the Act”).
The applicant is a citizen of Pakistan. He arrived in Australia in 2008 on a student visa, which expired in 2011. He was refused a further student visa in 2011. The Migration Review Tribunal refused his application to review the refusal of a further student visa in 2014.
In 2014 the applicant applied for a protection visa. His claims for protection at that time were that:
·He is a Shia Muslim and fears sectarian violence in Pakistan.
·He belongs to the Muhajir (Mohajir) ethnic group and fears inter-ethnic violence.
·He fears being targeted by criminal gangs.
·He fears he will be perceived to be a wealthy individual returning to Pakistan from a Western country.
On 13 May 2016 the delegate refused his application and he applied to the Tribunal for review.
On 8 June 2016 the applicant made written submissions to the Tribunal raising claims which were not raised in his original protection visa application. The applicant claimed that since 2010 he had been in a relationship with an Indian Hindu woman, Ms D. She was some 22 years older than the applicant with three adult children and divorced from her husband. She resided in India and at all material times has continued to reside in India.
The applicant said he met Ms D in 2010 and they began a “committed relationship” in about September 2010. He said that he would live with Ms D but in Pakistan marriage between Muslims and Hindus is against the law and socially unacceptable and, further, the relationship would not be accepted in India or Pakistan because of their ages, different religion and being citizens of Pakistan and India respectively.
The applicant said they would be persecuted in Pakistan because of the

“interfaith relationship”.
He also said they could not be together in a relationship in India either because their families would object and they would be persecuted. The applicant said, further, that as a Pakistani citizen he would not be permitted to reside in India.
At the hearing before the Tribunal it transpired that Ms D had visited Australia in August 2010, December 2010, July 2012, October 2012 and March 2013. She has not returned to Australia since 2013 and the applicant has not spent any time with her since then.
The applicant provided evidence that he remains in frequent electronic and telephone contact with Ms D. After the Tribunal hearing Ms D gave a letter to the Tribunal providing an account of her continuing relationship with the applicant. She said that, after meeting the applicant in Darwin in August 2010, in September 2010 the applicant “called me out of the blue proposed [to] me and invited me to stay with him at his home”. Ms D went on to detail how members of her and the applicant’s family disapproved of their relationship but that they maintained their relationship over the phone and “nothing can change my love for [the applicant] including distance and time.” Ms D said it is "dreadful to imagine relocating to Pakistan or India" as a couple. It was clear from her letter that she had no intention of relocating to Pakistan or to marry the applicant in India.
The Tribunal accepted Ms D's evidence. It accepted that there was a genuine relationship and that the applicant would probably like to marry Ms D. The Tribunal did not accept the applicant's initial claims in relation to the threat of sectarian violence or fear of criminal gangs. The Tribunal expressed reservations about the credibility of the applicant, particularly in relation to his delay in making his protection claims of fearing interfaith based harm and the other initial claims until 2014. In particular the Tribunal referred to the applicant’s failure to raise the claim regarding Ms D until 2016 if he had concerns about his safety in Pakistan in an “interfaith relationship”, as he claims the relationship commenced in 2010.
In relation to the relationship with Ms D the Tribunal accepted that Ms D was in a relationship with the applicant in Australia. The Tribunal accepted the applicant and Ms D shared accommodation together and that their relationship was known to others. However, the Tribunal did not accept that the applicant or Ms D had
… any genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future.
The Tribunal in reaching its conclusion pointed to factors including:
·Despite claiming that he was engaged in August 2011 the applicant did not marry Ms D when they lived in Australia together.
·There is no evidence the applicant or Ms D made any plans to marry in Australia, Pakistan or India.
·When questioned about the proposed wedding the applicant could not provide any details.
·The applicant has not told his parents in Pakistan about the relationship and his intention to marry.
·The applicant has not physically seen Ms D since she departed Australia in June 2013.
·Ms D has been living and working in India since 2013 and is now running her own business and there is no evidence that she intends to relocate to Pakistan.
·Significantly as stated above, when the applicant lodged his protection visa application in 2014 he made no claims that he was in as relationship and feared returning to Pakistan because he intends to marry a divorced Indian Hindu woman who has three adult children and is significantly older than him.
Ground one of the grounds of review is as follows:
The Tribunal's finding about the ability of the Applicant's spouse to obtain Pakistani citizenship through marriage in Pakistan or a "third country" was not based on any evidence or was contrary to the evidence.
The particulars of this ground referred to the Tribunal’s expression of the view or observation that the applicant's spouse could be able to obtain Pakistani citizenship and live with him in Pakistan or that the couple could marry in “a third country”. The applicant alleged there was no evidence for the Tribunal on which to base its assumption that such a marriage conducted outside of Pakistan would be recognised under Pakistani law.
Ground two is:
The Tribunal failed to consider the entirety of the evidence before it.
The particulars of this ground alleged that the Tribunal had referred to the Pakistan Citizenship Act, 1951 to conclude that the applicant's partner would be able to apply for Pakistani citizenship and, further, the Tribunal ignored the evidence that a woman would need to show evidence of an aggregate stay of five years in Pakistan before applying for citizenship.
Ground three is:
The Tribunal denied procedural fairness to the applicant.
Particulars
(a) At the hearing the Tribunal told the Applicant that it accepted that he was in love with his partner and would probably like to marry her.
(b) In its decision, the Tribunal said that it did not accept that there was any genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future.
(c) The Tribunal failed to notify the Applicant that it had changed its view on what was a critical issue in the case between the hearing and its decision.
Ground four is:
The Tribunal’s refusal to call witnesses requested by the applicant amounted to jurisdictional error.
The particulars of this ground alleged that the Tribunal had refused to call the applicant's partner when requested by the applicant because she would "only repeat what she had said in her sworn affidavit". This was said to be unreasonable because her evidence was crucial to the applicant's credibility and the refusal to call evidence from Ms D constituted procedural unfairness.
Ground five is:
The Tribunal asked itself a wrong question.
a) The Tribunal erred in asking whether there was any "genuine intention for the couple to live together in Pakistan and marry in the reasonably foreseeable future".
b) The correct question for the Tribunal to ask was whether the applicant's inability to live with Ms D in Pakistan constituted serious harm for the purposes of s. 5J of the Migration Act 1958 and/or significant harm to the purposes of s. 36(2A) of the Act.
The Minister conceded that the Tribunal made the observations referred to in grounds one and two. However, the Minister submitted that these observations were subsumed in the more general finding that Ms D would not go to live in Pakistan. Essentially the specific findings were subsumed in a finding of greater generality.
In relation to ground three, the Minister responded that the Tribunal accepted all of the assertions made by Ms D in her letter to the Tribunal. Ms D said there was a genuine relationship between her and the applicant, but she had no intention of living in Pakistan. That was the Tribunal finding. The Minister submitted, and I accept, that there was in fact not any change of view by the Tribunal of which it was required to give the applicant notice.
In relation to ground four, the Tribunal accepted the substance of Ms D's evidence. There is nothing to suggest procedural unfairness in refusing to call Ms D to give evidence in the circumstances.
In relation to ground five, the applicant submitted that this matter is analogous with the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQOT (2012) 206 FCR 145. SZQOT considers the question of whether the separation of family members could constitute “significant harm”. In my view there are significant factual differences between this matter and SZQOT.
In SZQOT the first respondent was a Shia Muslim from Iraq who feared harm if returned to Iraq on account of his marriage to a Thai woman of Sunni Muslim faith. The first respondent and his wife also had a child. The first respondent’s wife was not willing to return to Iraq to live as a couple because she had been subject to persecution and harassment there and the first respondent could not see his wife and child in Thailand as he could not obtain a visa. As such the first respondent submitted he suffered “psychological harm” by reason of separation from his family which constituted persecution giving rise to a protection obligation. The Federal Court dismissed the Minister’s appeal on the basis that the Independent Merits Reviewer did not consider the first respondent’s separation from his family
…as an integer of the first respondent’s claim of persecution, even though this was placed before the second respondent [Independent Merits Reviewer] for consideration
The observations in SZQOT were somewhat qualified by comments in GLD18 v Minister for Home Affairs [2020] FCAFC 2 which raised doubts about whether the fact that an applicant and his or her partner are unable to live together constitutes a well-founded fear of persecution of itself. The observations in GLD18 are that something more may be required, such as some “psychological harm” if the applicant and his or her spouse were forced to separate and live apart.
This case is factually very different to SZQOT. In my view, the Tribunal was concerned about an air of artificiality and contrivance in the applicant's claims. The applicant claims he was engaged to Ms D in August 2011 and there was no indication that the applicant and Ms D would not be able to marry in Australia if they so wished. However, this has not occurred. While there was evidence they carried on a long distance relationship they had in fact not spent any time together since 2013. Apart from some brief periods together in 2010, 2012 and 2013, the applicant and Ms D have not lived together at all.
The Tribunal was simply not satisfied that
…there is any genuine intention for the applicant and Ms D to live together in Pakistan and/or marry in the foreseeable future.
Such a conclusion was open to the Tribunal and not illogical or unreasonable. Given that finding, the question of whether the applicant would be exposed to serious or significant harm if he were to live in a relationship with Ms D in Pakistan is hypothetical. The Tribunal was not satisfied the real reason for the applicant and Ms D not marrying or living together was the circumstances they might face in Pakistan.
I am not satisfied that the Tribunal failed to ask itself the correct question or asked itself the wrong question. This ground is not made out.
The application will be dismissed. There will be orders accordingly.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 6 November 2020