CSO15 v Minister for Immigration
[2017] FCCA 1812
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSO15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1812 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims the Tribunal erred in its statutory task because it did not deal with the psychologist report – where reference to the psychologist’s report would not have led to a different result – no jurisdictional error – application dismissed. |
| Applicant: | CSO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2797 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 21 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Hosking |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant is to pay the costs of the First Respondent fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2797 of 2015
| CSO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed 21 April 2017 the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 November 2015 in which the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of application are as follows:-
“1. The Tribunal erred by failing to consider:
a. the Applicant's claims in respect of the area to which he would return, namely Usterzai Bala, Khyber Paktunkhwa; and/ or
b. an integer of the Applicant's claim, namely that he was at real risk of relevant harm on return to Usterzai Bala, Khyber Paktunkhwa.
2. The Tribunal erred in its statutory task in that it did not 'deal with' the psychologist's report dated 23 June 2015, in particular in respect of the general negative credibility assessment arising from the dates the Applicant said he lived in the Federally Administered Tribal Area as compared with Khyber Paktunkhwa, Pakistan.”
The First Respondent seeks dismissal of the Application and costs.
History
The Applicant is a citizen of Pakistan. He arrived on Christmas Island by boat on 9 June 2012. On 4 January 2013, he applied for a protection visa.
A delegate of the Minister refused that application on 31 March 2014 and on 7 April 2014 he applied to the then Refugee Review Tribunal for review.
The Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Pashto and English languages on 10 July 2015. He was represented by a registered migration agent.
The Applicant presented his claims in his protection visa application on 4 January 2013; in a Departmental interview he attended on 25 June 2013; in a detailed submission from his adviser received by the Tribunal on 3 July 2015 to which was attached a psychological report written by Dr Michael G King from Sunshine Health and Dental Superclinic and a letter from Parachinar Welfare Society of Victoria attesting to the applicant’s profile as a member of the Anwari family; and at his Tribunal hearing on 9 July 2015.
The following is the statutory declaration made by the Applicant attached to his protection visa application as set out in paragraph 21 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’):-
“Introduction – Citizenship
1. I am a citizen of Pakistan I do not have a right to citizenship or a right to reside in any other country.
2. I am a Pushtun Shia Muslim.
3. I was born on 13/4/1989 in Kalaya Village, Orakazai Agency, Khyber Pakhtunkhwa, Pakistan.
The country to which I fear returning
4. I fear returning to Pakistan
Why I left that country
5. The Orakazai Agency comprised of 2 Shia tribes, Mani Khel and Bar Mohammed Khel; and 16 Sunni tribes. A small river separated the Shia tribes and the Sunni tribes.
6. Since 2008, the Taliban started attacking my village. My village is a Shia village occupied by 2 tribes, Mani Khel and Bar Mohammed Khel.
7. From 1995, I have been living at my uncle’s house in Ustarzai Bala village to attend the school in that area. On 25/11/20 went to visit my father and stayed on to celebrate the Eid festival in my village.
8. On 5/12/2008, the Taliban suicided bomb (sic) a car in Kalaya market. 5 were killed and 3 injured. All were Shia & the suicide-bombed car was driven from Sunni villages.
9. I was not injured in that suicide bomb. But my father was afraid of my safety, and told me to leave the area and returned to my uncle’s house. My uncle’s village, Ustarzai Bala village, was also a Shia village. It was situated about 2-3 hour driving distance from my village.
10. On 18/10/2009, another suicide bomb happened in Kacha Paka market in Ustarzai Bala village. The market was about 15-20 minutes driving distance from my uncle’s house. The bomb killed 23 and injured 13, and the victims were all Shias.
11. At that time, I was working for the partnership family business of my father and my uncle. The family business was selling automobile spare parts and the shop was situated just the border of the market. I survived that bomb blast.
12. On 17/4/2010, another suicide bomb happened again in Kacha Paka market. This time 43 were killed and 30 were injured in this suicide bomb. I also survived the bomb blast.
13. The Taliban claimed the responsibilities for all those above mentioned suicide bombs. The Taliban attacked and killed us because we were Shias.
14. In around October/November 2010, I travelled to Peshawar to enrol in the college. On the way to Peshawar, 4 armed and masked Taliban stopped our bus. There were about 24 passengers in the bus but only I was a Shia, the rest were all Sunnis. The Taliban checked all the passengers’ national identity cards.
15. When they realised that I was a Shia because of my Shia's name, they told me, 'We were taking you to the mountain.'
16. I started to beg the Taliban to let me go. The Taliban took some sympathy on me and said ,'All right, this time, we will let you go, but never come back to this route again. If you come back this way again, we will chop your head off.'
17. I went back home and stayed with my uncle until I left Pakistan.
What I fear may happen to me if I return to Pakistan.
18. I will be killed by Taliban because I am a Shia.
19. The Taliban already let me go once, next time the Taliban catch me, they will kill me.
Why I think the authorities of that country cannot or will not protect me if I go back to that country.
20. The Taliban had targeted and killed many Shia Pakistan government officers. If the Pakistan government are not capable of providing protection to their own officers, how could I expect them to provide me with any protection from the Taliban.
Why I think relocation to another area in my country is not a reasonable option.
21. The Taliban networks cover in all areas of Pakistan. Taliban will kill me because they hated Shias. They called us infidels and deserved to beheaded (sic).”
The Tribunal
The Tribunal accepted the Applicant was a citizen of Pakistan, born in Kalaya, in Orakzai Agency which it found, on the basis of independent country information, to be in FATA and not in Khyber Pakhtunkhwa (‘KPK’) as claimed by the Applicant.
As to the Applicant’s claims as to his residence in Pakistan, the Tribunal said:-
“29. In the hearing, the applicant claimed that he lived in Kalaya village up until 1995. He then lived with his uncle in Usterzai Bala village, in Kohat district from 1995 to 2008, during which time he commuted to his father's house a lot. When asked where he lived after 2008, the applicant claimed he lived in both places but spent the greatest amount of his time with his father. The applicant confirmed he was mostly living in Kalaya village after 2008. He claimed he would visit his uncle every 2 or 3 months, for a period of five days to a week. He also claimed he lived with his uncle before he left Pakistan for about a month.
30. In contrast to the applicant's evidence in the hearing, in the applicant's protection visa application he declared that he lived in Usterzai Bala village from 1995 until February 2012. Further in his statutory declaration attached to his protection visa application, the applicant claimed that after his attempted abduction in 2010, he stayed with his uncle until he left Pakistan.
31. In the delegate's decision, it was stated that the applicant had provided his address history as living in Kalaya village from 1989 to 1995. From 1995 to 2008 he was residing in Usterzai Bala and from 2008 to 2011 he was living again in Kalaya village. He then returned to Usterzai Bala and lived there from 2011 to 2012. According to the delegate's decision, when asked at interview where he was last living in Pakistan, the applicant stated he was living in Usterzai Bala with his uncle. He confirmed he had been living with his uncle since 1995 and during this period he sometimes visited his family in his village. When asked about the discrepancy between his evidence in the entry interview and his protection visa claims, the applicant reiterated he lived with his uncle and occasionally visited his family, in stark contrast to his evidence in the hearing which was the exact opposite.
32. When the inconsistencies in his evidence about where he resided, as discussed above, was put to the applicant in the hearing, the applicant agreed that there was a mistake in the dates because he forgot and was getting a lot of dates wrong because he was under a lot of tension and stress. However, as the Tribunal explained to the applicant, the issue was not about the dates but rather that his account of where he resided at various periods of time was significantly different. For instance, in his statutory declaration he claimed after the bus incident in October/November 2010 he went and stayed with his uncle until he left Pakistan. Yet, in the hearing he claimed after the bus incident he went back home to his village and mostly lived there. The Tribunal does not accept, even taking into consideration the applicant's feelings of tension and stress, that he would be unable to recall consistently whether he was living with his uncle for a period of over a year prior to departing the country or if he was mostly living at his home during that time. The Tribunal finds the applicant's varying evidence as to where he lived in Pakistan, particularly from 2008 onwards, raises concerns about the applicant's credibility generally and also about where he was living in the several years before his departure from the country. Considering all the evidence before it, the Tribunal is unable to be satisfied as to where the applicant lived in Pakistan.”
Otherwise:-
a)the Tribunal accepted that there may have been suicide bombings in the villages where he was living or visiting, but there was no evidence to suggest that he or his family were specifically targeted by the bombings or that he was “personally caught up in these events or was affected by them”;
b)the Tribunal did not accept the Applicant’s evidence that armed and masked Taliban members stopped a bus he was travelling in and threatened to kill him;
c)the Tribunal accepted that the Applicant was part of a respected and honoured family but it did not accept that they had been regularly threatened since 2006; and
d)the Tribunal found that the Applicant did not face a real chance of serious harm if he returned to his home area in Kalaya in Orakzai Agency.
The Tribunal did not consider whether the Applicant was at real risk of harm in KPK.
Subsidiary claims were also pressed before the Tribunal to the effect that he feared persecution as an educated person or as a returnee from a western country. These claims were not accepted, nor was the claim for complementary protection.
As to the Tribunal’s consideration of the psychologist’s report dated 23 June 2015, that is set out in paragraph 45 of the Decision Record which is as follows:-
“The Tribunal has also considered the applicant's adviser submission at the end of the hearing referring to the psychologist's report dated 23 June 2015 which he asserted discusses the applicant's mental status and his mental ability in regard to expressing himself and talking. While the Tribunal accepts the applicant may have been depressed since he arrived in Australia due to separation from his family and his fiance, as discussed in the psychologist's report, it is not satisfied that this or the applicant's intellectual development, described by the psychologist at being at the boundary where special assistance would have been provided in Victorian schools, adequately explains the applicant's failure to raise such significant and personal claims at an earlier stage in the process. Nor does the Tribunal accept the more recent medical certificate provided by the applicant's GP, dated 2 October 2015, stating that he is suffering from Post Traumatic Stress Disorder, which the Tribunal notes is not suggested by the psychologist in his report discussed above and does not elaborate on what basis this diagnosis was made, explains the delay in the applicant raising these important claims or suggests that the applicant's evidence was affected by this alleged condition.”
Essentially, the Tribunal did not find many of the claims made by the Applicant to be credible. In each instance, matters were put to the Applicant for his comment, and clearly so.
Consideration
The reasons of the Tribunal are detailed and comprehensive. A wide range of independent country information is canvassed and carefully weighed and considered.
Ground 1
The first ground of the application is that the Tribunal erred by failing to consider whether the Applicant would return to live in Usterzai Bala, Khyber Paktunkhwa, and if so, whether he would face a real risk of harm there. The Applicant argued that the possibility that the Applicant would return to Usterzai Bala and not Orakzai Agency was possible on the material before the Tribunal. The Tribunal therefore committed jurisdictional error for failing to identify a place of return, and/or failing to consider an integer of the Applicant’s claim. The Applicant argued that, before the Tribunal, was a clearly articulated argument that the Applicant would return to Usterzai Bala and to Kalaya village.
The Tribunal did however expressly make a finding about where the Applicant was returning to. The Tribunal referred to Kalaya village in the Orakzai Agency as the Applicant’s “home area” in several paragraphs in the Decision Record, it being the place which the Tribunal determined the Applicant would return to. It was the place where his family were. It was only his uncle who lived in Usterzai Bala. That finding having been made, it was not necessary for the Tribunal to inquire into whether the Applicant would face a real risk of serious harm in some other place. The finding by the Tribunal as to the Applicant’s “home area” was both clearly open to the Tribunal on the evidence before it, and consistent with the case put by the Applicant to the Tribunal.
As submitted by the First Respondent, the Applicant’s argument ignores the fact that such a finding was made because the Applicant places too much weight on the statement by the Tribunal that it was “unable to be satisfied as to where the applicant lived in Pakistan” in the past. That statement was directed to the Applicant’s contradictory evidence about the locations at which he lived, and in what periods, prior to his departure from Pakistan. It was in the context of the Tribunal’s consideration of the Applicant’s claims as to bombings having occurred at locations in which he claimed to be present. It was a statement that went to the credibility of the Applicant’s claims and not to where the Applicant would return in Pakistan. The Tribunal accepted that the Applicant had spent some time in both Orakzai Agency and Usterzai Bala.
The Applicant, having not expressly submitted to the Tribunal that he may return to Usterzai Bala, and that possibility not emerging from the material before the Tribunal, the Tribunal committed no jurisdictional error in respect of this ground.
Ground 2
The second ground of review is that the Tribunal erred in its statutory task because it did not “deal with” the psychologist’s report dated 23 June 2015 in making negative remarks about the Applicant’s credibility because of inconsistencies in his evidence about when he lived in Usterzai Bala and when he lived in Orakzai Agency.
The Applicant took issue with the fact that the Tribunal did not refer to this report in the course of noting that “the applicant’s varying evidence as to where he lived in Pakistan, particularly from 2008 onwards, raises concerns about the applicant’s credibility generally”. The Applicant argued the psychologist’s report was a significant piece of evidence.
This is not a case where the Tribunal has made no mention of a piece of evidence relied upon by an Applicant for judicial review. The Tribunal referred to the psychologist’s report on several occasions in the Decision Record. It cannot be inferred that the Tribunal did not consider the report in its consideration and assessment of the inconsistencies in the Applicant’s evidence. The proper inference to draw is that the Tribunal did properly have regard to the report and found it relevant to some issues and not others. There was nothing illogical in the conclusion drawn by the Tribunal on the totality of the evidence before it, which included the psychologist’s report. The Tribunal took into account the Applicant’s feelings of “tension and stress” when assessing the credibility of the Applicant’s claims, together with, by inference, those other matters raised in the psychologist’s report as set out in the Decision Record.
The psychologist’s report was not critical. It attempted to explain inconsistencies in the Applicant’s claims. It did not go to establishing the Applicant’s claims. Moreover, as submitted by the First Respondent, that evidence could only have limited probative weight as the Tribunal had the benefit of receiving evidence from the Applicant in person and observing his demeanour.
There is no jurisdictional error established on the basis of this ground.
Accordingly, the application shall be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 4 August 2017
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