CPW16 v Minister for Immigration
[2017] FCCA 818
•26 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 818 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA visa) – whether the Tribunal failed to correctly interpret the law – whether the Tribunal failed to take into account relevant considerations – adverse credibility findings were the subject of rational reasons by the Tribunal – Tribunal complied with its statutory obligations in the conduct of the review – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476. |
| Applicant: | CPW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2505 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 26 April 2017 |
| Date of Last Submission: | 26 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr T Shaw Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2505 of 2016
| CPW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal “the Tribunal”) made on 1 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant claimed to fear harm by reason of having converted to Christianity or being perceived to have converted to Christianity and having abandoned Islam which was a crime of apostasy.
The applicant arrived in Australia on 27 September 2008 as the holder of a subclass 572 Student (Vocation Education and Training Sector) visa. On 19 August 2011, the applicant travelled offshore and returned home to Pakistan and then returned to Australia on 18 October 2011. It was not until 2 September 2014 that the applicant lodged an application for a subclass 866 (Protection) visa. This application followed an unsuccessful challenge to the cancellation of his student visa and an abandonment of an appeal in that regard.
The delegate
The delegate made adverse credibility findings in relation to the applicant’s claims. The delegate found the applicant’s claims were not credible and was not satisfied the applicant had a real chance of being persecuted in Pakistan. The delegate found that she was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and found that the applicant’s fear was not well-founded.
The delegate found that the applicant was not a person in respect of whom Australia had protection obligations under the 1951 Refugees Convention, and found that the applicant did not meet the criterion under s.36(2)(a) of the Act.
The delegate was not satisfied that the applicant fears significant harm, as required under s.36(2A) of the Act. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk the applicant will be subject to significant harm.
The Tribunal
On 11 June 2015 the applicant sought a review of the delegate’s decision. By letter dated 10 August 2016 the applicant was invited to attend a hearing before the Tribunal on 30 August 2016. The applicant appeared on that date to give evidence and present arguments.
The Tribunal identified the applicant’s background and set out a summary of the applicants claims. The Tribunal summarised the information provided by the applicant to the Department, which included the email correspondence in relation to the withdrawal of his appeal in respect of his visa cancellation and alleged communication from his sister suggesting that he had been identified as a person who converted to Christianity. The delegate did not accept that email and the Tribunal for reasons explained gave that email no weight. The Tribunal observed that the applicant provided no supporting evidence of any kind in relation to his review application other than his oral evidence.
Assessment of refugee criterion
The Tribunal found that the applicant’s claim about having converted to Christianity and being a Christian is a falsehood. The Tribunal found that the applicant never genuinely converted and only went through the motions in order to marry a particular person. The Tribunal found that the applicant was providing misleading information in respect of his assertion to the Department that he was a Christian.
The Tribunal did not accept that the applicant was baptised in Pakistan under any circumstances, whether in secret, or fast-tracked or anything else. The Tribunal did not accept as fact the applicant’s claimed rationale for being baptised, being that he wanted to marry a Christian woman.
The Tribunal found that it could not rely on the applicant’s claims to the effect that the woman ever existed, let alone died, or that she was murdered as claimed by the applicant. The Tribunal found that the applicant’s claims about the woman were a complete fabrication.
The Tribunal found that the applicant was not a witness of truth. The Tribunal gave the emails no weight. The Tribunal did not accept that the applicant has any cousins who converted to Christianity in Pakistan, that there was any arrest and that the person gave evidence to the police against him. The Tribunal found that the applicant was not a person who would be imputed by anyone anywhere in the world let alone Pakistan, to have abandoned Islam.
The Tribunal was not satisfied on the evidence before it of the applicant’s status as a Muslim, or his stance or attitude towards Islam in particular, or to any other religions or to religion in general gives rise to a real chance of the applicant being persecuted in Pakistan in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant has a real chance of persecution in Pakistan for any Convention relation reason in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criterion under s.36(2)(a) of the Act.
Assessment of complementary protection criterion
The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that the applicant would suffer significant harm.
The Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act, and affirmed the decision of the delegate.
Before this Court
The applicant applied for review on 15 September 2016. The grounds are as follows:-
1. The Tribunal did not correctly interpret law relating to the applicant's protection claims, namely s. 36(2)(a) and s.36(2)(aa) of the Migration Act 1958;
Particulars
The applicant fears persecution in Pakistan because he converted/is being perceived as converted to Christianity. Wilful abandonment of lslam is a crime in Pakistan. The applicant fears that he will be punished if he returns to Pakistan. The applicant claims to be persecuted from two ends, by the authorities for apostasy and by those who hold extremist views. The applicant submits that the seriousness of his threats were not properly applied to his evidence and that elements of sections 36(2)(a) and 36(2)(aa) were not appropriately construed.
2. The applicant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations. Therefore, the applicant submits that there was procedural unfairness during the decision making process of the Tribunal which resulted in the breach of rules of natural justice.
On 8 December 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory jurisdiction or a denial of procedural fairness to the applicant. The Court explained that in summary this meant that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if the Court was satisfied the Tribunal’s decision was unlawful or unfair, the Court would set the decision aside and send it back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair, the Court would dismiss the applicant’s application.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
Adjournment application raised from the bar table
The applicant indicated that he had seen a couple of lawyers, and that his father had recently died, and that he wanted an adjournment. No earlier notice of the adjournment had been given to the first respondent. The applicant did not provide any explanation as to the utility of granting an adjournment, having identified that he had been unsuccessful in obtaining a lawyer, and unsuccessful in obtaining funds to meet the cost of a lawyer. The adjournment was opposed by the first respondent.
The applicant also referred to having been sick. Nothing in the applicant’s demeanour or response to the Court indicated that the applicant was in any way unable to meaningfully participate in the hearing conducted today. The reference to the applicant’s father having passed away is a reference to the person in respect of whom the email communications from his sister related to and identified that back in 2014 his father needed medicine and was asking for medicine from the applicant.
Nothing was said by the applicant to identify any utility in the granting of an adjournment. In the circumstances, an adjournment is only likely to increase the costs of the parties and utilise limited court time. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.
From the bar table, the applicant confirmed that he had read the submissions of the first respondent, but said that he was not versed in legal matters. The Court repeated the invitation by the Court for the applicant to identify why he said the Tribunal’s decision was unlawful or unfair. Nothing was advanced by the applicant.
Consideration
Ground 1
In relation to ground 1 of the application, the Tribunal correctly identified the relevant law which was set out in the Tribunal’s reasons. There is no basis identified to find that the Tribunal did not correctly interpret the relevant law.
The particulars to ground 1 in respect of the applicant’s claims having converted to Christianity were the subject of consideration and adverse findings by the Tribunal. Those adverse credibility findings were the subject of rational reasons provided by the Tribunal and cannot be said to lack an evident and intelligible justification.
Relevantly, the applicant arrived on a student visa in 2008 and returned to Pakistan in 2011 and it was not until 2014 that he applied for protection. Given the adverse credibility findings by the Tribunal, it was open to the Tribunal to find that the applicant did not meet the criteria under s.36(2)(a) of the Act and s.36(2)(aa) of the Act. Ground 1 fails to make out any jurisdictional error.
Ground 2
In relation to ground 2, any relevant consideration that the Tribunal failed to take into account or any irrelevant consideration that the Tribunal took into account was not identified by the applicant. On the face of the reasons by the Tribunal, the Tribunal complied with its statutory obligations in the conduct of the review and the applicant had a real and meaningful opportunity to give evidence and present arguments before the Tribunal.
On the face of the material before the Court, it is not apparent that there was any denial of procedural fairness in the conduct of the review by the Tribunal. No jurisdictional error as alleged in ground 2 is made out. Nothing said by the applicant identifies any basis upon which relief could be granted.
Conclusion
The application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 4 May 2017
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