CSM16 v Minister for Immigration

[2019] FCCA 3122

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSM16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3122

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the applicant had a real and meaningful hearing before the Tribunal – whether the Tribunal was required to invite the applicant to comment or respond – whether the Tribunal misconstrued the statutory provisions – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: CSM16

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2575 of 2016

Judgment of: Judge Street

Hearing date: 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Sydney

Delivered on: 31 October 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Pieri
HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER: 31 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2575 of 2016

CSM16

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 within the Court’s jurisdiction 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 5 September 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant arrived in Australia on a Student (subclass 573) visa on 28 February 2013. The applicant return to Pakistan on 16 March 2014, and then returned to Australia on 25 April 2014. It was not until 18 August 2014 that the applicant applied for a protection visa.

3. The applicant was found to be a Shia and claimed that because he is a Shia and that he and his father were involved in a Shia organisation, that they were both sought by Islamic extremists and that his father was shot and harmed. The applicant claims to fear harm from extremist groups if returned to Pakistan. On 20 February 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

4. On 30 March 2015, the applicant applied to the Tribunal for review. By letter dated 11 August 2016, the applicant was invited to attend a hearing on 1 September 2016. The applicant appeared on that date to give evidence and present arguments.

5. The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the applicant’s claims and evidence. The Tribunal accepted that the applicant is a Shia Muslim but found that he had not been truthful in respect of his reasons for seeking protection in Australia. The Tribunal found that the applicant’s evidence during the hearing was confused and inconsistent with the documentation provided, and his evidence as to the attacks to himself and his father due to their Shia faith and their involvement in a Shia organisation in a particular location was not consistent with independent evidence.

6. The Tribunal summarised the applicant’s evidence in relation to he and his father’s involvement in Majilis Whadat-ul-Muslimeen (“MWM”). The Tribunal expressly referred to country information in respect to very few attacks against Shias in a particular location, and referred to the applicant’s explanation about the attack on his father on 24 January 2014 and putting to the applicant that there was no reporting of attacks against Shias in that particular location in 2014.

7. The Tribunal sought to explore with the applicant his reasons for coming to Australia, and the applicant stated it was to study and confirmed that there is no other reason that he had come to Australia. The Tribunal referred to asking the applicant why he did not start his classes in February 2014, and the applicant stated he was his father’s only son, his father had been attacked and that he was missing his father. The Tribunal found the applicant’s evidence in relation to his reasons for not continuing with his master’s course and instead returning to Pakistan are confused and inconsistent, and indicative of the fact that he has fabricated his claims that he returned to Pakistan to “surprise” his father and discovered that he had been shot and was in hiding.

8. The Tribunal found that the applicant altered his evidence during the hearing in response to the Tribunal’s concerns regarding the timing of his knowledge of the purported attack against his father, which he previously claimed he did not know about until March 2014 when he returned to Pakistan. The Tribunal found this indicative of the fact that the applicant’s claims in relation to his father’s attack have been fabricated.

9. The Tribunal further considered the applicant’s evidence to the Tribunal regarding the newspaper reports and other documentation he provided were indicative of the fact that the applicant’s claims are fabricated. The Tribunal found the applicant’s evidence as to when he obtained the letter from the MWM was confused and inconsistent. The Tribunal also found the applicant’s evidence in relation to the newspaper reports he provided to be confused and inconsistent, and did not accept the applicant’s explanation for the information contained in the newspaper reports. The Tribunal identified the wording of the reports gave rise to concerns in respect of the authenticity and that they were indicative of having been fabricated for the purpose of the applicant’s claims.

10. The Tribunal also explored with the applicant the lengthy delay in the lodgement of the application for protection and his return to Pakistan as not supporting his claim to genuinely fear harm in Pakistan. The Tribunal did not accept the applicant’s explanation for returning to Pakistan on March 2014, or his reasons for delaying lodgement of the application. The Tribunal also took into account that had the applicant been shot at in Pakistan and due to his father’s associate with the MWM that the applicant would not have delayed lodging an application for a protection visa until August 2014. The Tribunal identified the problematic nature of the information provided by the applicant, and did not accept the applicant as being truthful of his reasons for seeking protection in August 2014, several months after he arrived back in Australia.

11. The Tribunal found that the applicant had manufactured the entirety of his claims regarding the harm he and his father suffered as a result of their involvement in the Imambargah and the MWM. The Tribunal found that the provision of the newspaper reports from two sources had been fabricated for the purpose of the application. The Tribunal discussed during the hearing with the applicant the fraudulent documentation and the ability to obtain the same in Pakistan. The Tribunal did not accept the applicant and his father were high profile members of the MWM, the Imambargah or the Shia community generally.

12. The Tribunal did not accept that the letter from the MWM, dated February 2014, contains truthful information. The Tribunal did not accept that the warning letters that were provided to the Tribunal or the newspaper reports are genuine. The Tribunal did not accept that the “Copy Report” where the applicant claimed to have been shot at is a genuine document. The Tribunal referred to country information in relation to documentation fraud being endemic in Pakistan. The Tribunal referred to having found that it did not accept the father or the applicant had any particular profile in a particular location.

13. The Tribunal turned to consider whether, because the applicant is a Shia, he faces a real chance that he will suffer serious harm upon his return to Pakistan. It was apparent from the Tribunal’s reasons that the Tribunal discussed with the applicant at the hearing the improvement of the situation in Pakistan, which the applicant disagreed with in respect of the country information. The Tribunal referred to the country information in respect of attacks on Shias and the Shia population. The Tribunal expressly referred to the situation in the applicant’s home region and the DFAT country information in that regard. The Tribunal found on the country information that there were relatively few major sectarian attacks in recent years in the applicant’s home region, being the most populated province.

14. The Tribunal did not accept that the applicant had any adverse profile at the time he left Pakistan and does not accept he will have any adverse profile upon his return, or that he will be sought by the Taliban or any other Islamic groups or individuals. The Tribunal does not accept the applicant will have to modify his religious practices upon return to Pakistan or that his involvement in the Shia religion or in his family’s home near the Imambargah will result in a real chance that he will suffer significant harm.

15. The Tribunal took into account the size of the Shia community and the low number of attacks and violence against Shias, as well as the evidence indicating that in the applicant’s home region Shias and Sunnis generally live together without any significant issues. It was in these circumstances the Tribunal was not satisfied there was a real chance that the applicant would suffer serious harm because he is a Shia, as a result of any future involvement here his father may have in the MWM, the Shia community or Imambargah in the applicant’s home region.

16. The Tribunal did not accept that there is a real chance the applicant will be targeted or harmed as a result of these factors if he returns to Pakistan. The Tribunal was not satisfied there is a real chance the applicant will suffer serious harm in Pakistan for reasons of his religion, particular social group or any other Conventional reason. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Conventional reason if he returns to Pakistan now or in the reasonably foreseeable future.

17. The Tribunal turned to the issue of complementary protection and did not accept the applicant has any particular profile which had attracted adverse attention of extremist groups or individuals and did not accept he will have such a profile upon his return to Pakistan. The Tribunal was not satisfied there is a real risk the applicant will suffer significant harm, including the arbitrary deprivation of his life, the death penalty, torture, cruel and inhuman treatment and punishment, or degrading treatment or punishment.

18. It was in these circumstances the Tribunal found the applicant failed to meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 22 September 2016. On 19 January 2017, a Registrar of the Court made orders giving the applicant the opportunity to file an amended application, affidavit evidence and submission. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table the applicant identified that because he was a Shia and that the Tribunal had accepted he was a Shia, his life would be at risk if he returned to Pakistan. It is apparent that the Tribunal did make a finding that the applicant was Shia, and expressly addressed the applicant’s fears in its adverse findings. The adverse findings cannot be said to be illogical or irrational and were open on the material before the Tribunal. It was apparent that the Tribunal took into account country information in the applicant’s home region, making adverse findings in respect of the applicant’s claim to be harmed because of his religion.

4. The applicant’s submissions from the bar table otherwise identified the assertion that his life would be in danger and that he could get no guarantee in relation to his safety in returning to Pakistan and that he had spent six and a half years in Australia. The applicant’s submissions in this regard, in substance, invite the Court to engage in a merits review. This Court has no power to review the merits, nor can this Court decide the matter on discretionary or compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   1. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Pakistan.

   3. The Tribunal did not give to the applicant before the independent information that it had about Pakistan, The Tribunal used this information. This was against section 424A of the Migration Act 1958.

   4. The Tribunal failed to consider integer of the applicant's claim, in failing to consider whether or not a high profile Shia (regardless of their specific of affiliation or past persecution) in Pakistan was at risk of harm from Talibans and sunni, and not able to access effective protection.

Ground 1

1. In relation to ground one, no information has been identified raising any obligation under s 424A of the Act. The Tribunal’s reasons are consistent with the Tribunal’s raising its concerns with respect of the real issues with the applicant and on the face of the material before the Court the applicant had a real and meaningful hearing before the Tribunal. It is apparent in that regard that the Tribunal discussed with the applicant the country information and raised the issues of concern. The country information of itself is one falling within s 424A(2) and (3)(a) of the Act and does not give rise to any obligation of the type raised in ground 1.

2. Further, in so far as the Tribunal referred to information in respect of the applicant’s departure and return, this was information identified in the delegate’s reasons. The delegate’s decision was provided by the applicant with the application for review to the Tribunal and accordingly fall within s 424A(3)(b) of the Act and did not enliven any obligation of s 424A of the Act. No other information has been identified allegedly enlivening the obligation on the Tribunal under s 424A of the Act. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Tribunal expressly referred to consideration of the complimentary protection provisions and annexed to the Tribunal’s reasons the relevant law in paragraphs 47 to 51, which include the provisions concerning complimentary protection. The Tribunal’s reasons summarise the relevant law and in paragraph 50 expressly set out the substance of s 36(2A) of the Act. There is no basis in the circumstances of the present case to find that the Tribunal misconstrued or misapplied the statutory provision in relation to complementary protection.

2. The assertion of an erroneous application of the relevant test is not supported on the face of the Tribunal’s reasons. The Tribunal’s reasons are consistent with correctly applying the relevant law in relation to complimentary protection. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant asserts that the Tribunal did not raise with the applicant the country information. No evidence has been led by the applicant in that regard and the Tribunal’s reasons expressly refer to raising with the applicant the DFAT country information, both in relation to the circumstances in his home region as well as in relation to the ability to obtain fraudulent documents. Country information, for the reasons already given, is not in itself information of a kind with reliably any obligation under s 424A of the Act because of subsection (3)(a). No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the applicant alleges that there was a failure to consider an integer of his claim to the effect that he was a high profile Shia. Contrary to the applicant’s submission, the Tribunal expressly found in paragraph 34 of the Tribunal’s reasons that the applicant and his father were not high-profile members of the MWM, the Imambargah, or the Shia community generally. Given those adverse findings, there was no integer of the applicant’s claims that the Tribunal failed to consider. Accordingly, no jurisdictional error as alleged in ground 4 is made out.

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

I certify that the preceding thirty (30) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:  

Date:  25 November 2019