CRE16 v Minister for Immigration

[2020] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRE16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1221

Catchwords:
MIGRATION – Visa – application for judicial review – no failure by the Administrative Appeals Tribunal to give weight to particular country information – no failure to consider claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

BLH16 v Minister for Immigration and Border Protection [2019] FCA 1906

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant: CRE16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2021 of 2016

Judgment of: Judge McNab

Hearing date: 11 February 2020

Date of Last Submission: 11 February 2020

Delivered at: Melbourne

Delivered on: 22 May 2020

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: WLW Migration Lawyers

Counsel for the Respondents: Mr Hibbard

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 20 September 2016 and amended on 13 January 2020 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $7,467.

3. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2021 of 2016

CRE16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 20 September 2016 and amended on 13 January 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 24 August 2016. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (‘the Minister’) refusing to grant the applicant a protection (class XA) visa (‘the visa’).

2. This proceeding is brought pursuant to section 476(1) of the Migration Act 1958 (Cth) and was heard on 11 February 2020.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The parties agree that the following background (provided by the first respondent at [3] – [12] of his submissions) is accurate:

   3. The applicant is a Shia member of the Turi tribe from the Kurram Agency, Federally Administered Tribal Areas, Pakistan. He arrived in Australia on or about 21 June 2012, after a boat he was travelling in sank. He was rescued by the Australian Navy and taken to Christmas Island.

   4. On 15 November 2012, the applicant applied for the Visa. In his application, the applicant claimed to seek protection for the following [United Nations] Convention [Relating to the Status of Refugees] reasons:

   (a) religion: he feared persecution from the Taliban (and members of the Sunni majority) due to his Shia religion;

   (b) ethnicity: he feared persecution due to his Pashtun ethnicity (and being a member of the Turi tribe);

   (c) political views: he feared persecution due to his imputed anti-Taliban political views, or views generally supportive of the Turi tribe/Shia Muslims;

   (d) particular social group: he feared persecution due to his membership of the particular social groups "educated young Shia Muslims" and/or " members of the Turi tribe".

   5. The applicant also recounted in a statement:

   (a) the death of his cousin in 2008;

   (b) the disappearance of a friend, Qasar Hussain, in 2011;

   (c) numerous bomb attacks in 2011;

   (d) his attendance at protests in Islamabad and Peshawar in 2011;

   (e) his studies at university and membership of the Imamia Students' Organisation; and

   (f) anonymous telephone threats made to him by callers speaking Pashto in January 2012.

   6. On 15 October 2014, a delegate of the Minister refused to grant the Visa. The delegate accepted that the applicant had a well-founded fear of persecution as a Turi living in the Kurram Agency, but found he would be able to relocate within Pakistan.

   7. On 12 November 2014, the applicant applied to the Tribunal for merits review of the delegate's decision.

   8. On 8 July 2016, the applicant's representative provided written submissions to the Tribunal, which raised a further claim about an attempt to kidnap the applicant's father in January 2016.

   9. On 13 July 2016, the applicant attended a hearing before the Tribunal. He was assisted at the hearing by his representative and an interpreter in the Pashto language.

   10. On 3 August 2016, the applicant's representative provided further written submissions to the Tribunal, which addressed:

   (a) the attempt to kidnap the applicant's father and a related newspaper report, which the Tribunal member had suggested at the hearing may not be genuine;

   (b) the current situation in the Kurram Agency;

   (c) a new claim raised at the hearing as to whether the applicant feared persecutions due to his membership of the particular social group "returnee asylum seekers"; and

   (d) whether it was reasonable, in the sense of practicable, for the applicant to relocate within Pakistan.

   11. On 24 August 2016, the Tribunal affirmed the decision under review. In reaching its decision, the Tribunal:

   (a) summarised the relevant background and applicable law;

   (b) summarised the applicant's claims and the submissions made by him and his representatives, as well as the conduct of the hearing before the Tribunal;

   (c) considered the claims made by the applicant in relation to particular incidents, and:

   (i) accepted that the applicant's cousin had been killed, his friend had been kidnapped, there was a bomb attack in Peshawar in June 2011 and that the applicant had attended protests; and

   (ii) did not accept that the applicant had received threatening calls in Pashto or that his father had been the subject of kidnapping attempts;

   (d) considered the applicant's profile more generally, and found that he did not have, and would not in the reasonably foreseeable future have, a profile beyond that of any other Turi Shia;

   (e) considered country information about the security situation in the Kurram Agency by reference to the applicant's Convention claims, and concluded that there was not a real chance that the applicant would suffer persecution now or in the reasonably foreseeable future if he were to return to his home village; and

   (f) considered whether Australia owed the applicant complementary protection obligations and concluded that it did not .

   12. On 20 September 2016, the applicant commenced this proceeding for judicial review of the Tribunal's decision.

   (citations omitted, errors in original)

Ground of review

1. There is one ground of review, the first of two grounds having been abandoned by the applicant. The remaining ground is as follows:

   2. The Tribunal failed to consider the whole of the applicant's claim in relation to risks arising from insecurity on the roads around his home area in Pakistan.

Applicant’s submissions

1. The applicant submits that his claim is not just based on the road being closed, but, importantly, it is based on the difficulties that exist even when the road is open.

2. The applicant’s submissions at [5] state:

   5. The Tribunal’s analysis understood the applicant’s claims too narrowly. His claim was not just that the Thal-Parachinar road was closed, but also extended to the fact that he did not travel on that road, assuming it to be open, because of the risks that he felt arose in such travel. The claim is best captured at CB 84.5 where it is recorded that the applicant claimed that the issue arose from the road being “blocked off or not able to be used due to the insecurity”. The former notion refers to the physical closure of the road, and the latter notion refers to the ill-wisdom of travelling on the road even assuming it not to be physically closed. That is consistent with the applicant’s evidence about the sporadic nature of the road being open (see also pages 8 and 17 of the transcript of the hearing before the Tribunal, exhibited to the affidavit of 9 January 2020) […].

3. The applicant maintains that the Tribunal turned its mind to the improved security situation but that its attention was limited to whether or not it was possible to enter Kurram agency, and that its decision does not contain any discussion of the safety of the road, even if open.

4. The applicant relied on BLH16 v Minister for Immigration and Border Protection [2019] FCA 1906 for the proposition that the Tribunal considered a narrower claim than the totality of his claim.

5. The applicant claims that the Tribunal committed the jurisdictional error of failing to consider the claim, and that its decision should be quashed and the matter remitted for reconsideration with costs.

First respondent’s submissions

1. The Minister says that the ground for review does not disclose any jurisdictional error and that the applicant’s claim was dealt with a higher level of generality because the claim is intertwined with broader safety concerns of living in Parachinar. According to the Minister, the applicant’s claim about the Thal-Parachinar road must be seen in the context of a broader claim about the safety of returning to the Kurram Agency.

2. At [21] of his submissions, the Minister relies on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 to support its position that the Tribunal is only required to consider claims that arise ‘squarely’ on the available material, not claims that are not expressly made or do not arise clearly from the material before it.

3. The Minister also cites Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 for the proposition that it is unnecessary to make a finding on a particular matter if it is subsumed in findings of greater generality.

4. At [29] of the Minister’s submissions, it is put that the Tribunal’s reasons show that it understood and accepted the applicant’s claim:

   29. First, the Tribunal's reasons show that it understood - and accepted - the applicant's claim that "from 2007-2011 it was very dangerous along sections of the Peshawar­Parachinar road and the road was often blocked as a consequence" (emphasis added). The Tribunal also understood, and accepted, "the applicant's account that the security situation in Parachinar deteriorated from 2007, that the road to Peshawar was often closed and that travel along the road often had to be by convoy". These passages show the Tribunal understood the applicant's claim that the road was not secure even when not actually blocked by the Taliban. It also understood the gravity of what was at stake: it accepted that a friend of the applicant was missing, presumed dead, following a Taliban attack on a convoy.

   (citations omitted)

5. [33]–[35] of the Minister’s submissions summarise the Tribunal’s consideration of the applicant’s claim:

   33. Second, the Tribunal considered the Applicant’s claim as part of a broader claim about the cyclical nature of violence in the Kurram Agency. This was consistent with the way that the applicant advanced his claim. The emphasis of the applicant's claim before the Tribunal was not that the road remained unsafe but rather, although country information indicated the security situation had improved, that improvement could not be guaranteed given the "fluid and changing" situation in Pakistan. The Tribunal dealt with that claim, and the cyclical history of conflict in the region, in detail at CB 280 [72], 281 [75] and 282 [80]. It did so having accepted the applicant's claims regarding the past "insecurity" of travelling on the road even when not blocked at CB 271 [48] and 275 [60], and after considering at CB 279 [70] and 281 [76] the country information that indicated it was the security forces (and not the Taliban) who now maintained control along the Thal-Parachinar road.

   34. It concluded that "the weight of the country information indicates that a level of security has been restored to Kurram Agency and general peace restored, to the extent that there is not a real chance that the applicant would suffer persecution amounting to serious harm from the Taliban/TTP or other anti-Shia extremist groups or associated groups if he returned to Kurram Agency”.

   35. Even if the applicant were right to say that the Tribunal failed expressly to deal with the whole of his claim, the Tribunal's approach falls squarely within the circumstances contemplated in Applicant WAEE. The Tribunal's reasons were comprehensive. They specifically identified the safety of the roads at CB 271 [41], 275 [60] and 281 [76]. Having identified those claims, the Tribunal was plainly aware of them in considering the applicant's claim to fear future harm if he returned to the Kurram Agency. They were subsumed into its findings of greater generality in that regard. It was unnecessary for the Tribunal to go any further.

Consideration

1. The applicant’s claims regarding the dangers arising from the situation in Parachinar and the Kurram Agency have been addressed by the Tribunal in its decision. The applicant points to an alleged failure to consider particular claims raised at page 84 of the Court Book that provides:

   After returning to Parachinar, [CRE16] say that the situation had got much worse in this area and that the roads leading out of Parachinar were regularly being blocked off or not able to be used due to the insecurity. [CRE16] faced severe restrictions on his ability to travel freely in and outside of the Parachinar that impacted his ability to find appropriate work opportunities for his university qualifications. [CRE16] also started to experience the difficulties being faced by the residents in Parachinar due to the lack of basic services including shortages on food supplies and access to adequate medical care due to the road closures. The security situation for Shia Muslims in Parachinar also remained very dangerous and unstable. [CRE16] was fearful that he would similarly become a target of kidnapping or killing.

2. The Tribunal’s reasons show that the Tribunal considered claims made about the dangers of people living in those areas particularly at [48], [60], [61], [71], [75], [76] and [80] of the decision. The Tribunal’s findings in these sections demonstrat that the Tribunal considered the substance of the applicant’s claim as required.

3. Reading the decision fairly and as a whole, it is apparent that the Tribunal considered the applicant’s claims regarding the past risks and the real prospect that the security situation could not be guaranteed. The Tribunal’s decision was not limited to consideration as to whether the Thal-Parachinar road had reopened and the effect of that. However, the decision went further and considered the risks in the region generally, having regard to the country information.

4. The Tribunal’s reasons are comprehensive and plainly engage with the submissions filed by the applicant, both before and after the hearing.

Conclusion

1. For these reasons, the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 22 May 2020