CSZ15 v Minister for Immigration

[2017] FCCA 144

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSZ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 144

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether Tribunal found without evidence that the peace in the Kurram Agency was durable – whether the Tribunal misunderstood a UNHCR report – whether the Tribunal failed to have regard to a UNHCR report – whether the Tribunal failed to consider the applicant’s complementary protection claims.

Legislation:
Migration Act 1958, s.424(1)

Cases cited:
Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2) (2012) 205 FCR 227; (2012) 127 ALD 320; (2012) 219 IR 382; [2012] FCA 480

Applicant: CSZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2827 of 2015

Judgment of: Judge Riley

Hearing date: 5 December 2016

Date of last submission: 5 December 2016

Delivered at: Melbourne

Delivered on: 31 January 2017

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: Sabelberg Morcos Lawyers

Counsel for the first respondent: Mark Hosking

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 21 December 2015 and amended on 16 November 2016 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2827 of 2015

CSZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is a citizen of Pakistan from Parachinar in the Kurram Agency of the Federally Administered Tribal Area (“FATA”).  He is of the Pashtun/Bangash ethnicity and the Shia Muslim religion.

The applicant’s claims

1. The applicant claimed to fear harm on the basis of:

   a)his ethnicity;

   b)his religion;

   c)his imputed political opinion of opposition to the Tehrik-e-Taliban (“TPP”) and other extremist Sunni groups, on account of:

   i)his Shia religion;

   ii)his Bangash ethnicity;

   iii)his origins in Parachinar, which has a history of violent conflict with the Taliban;

   iv)his extended presence in Australia as an asylum seeker; and

   d)his membership of a particular social group of Bangash Shias from the Kurram Agency.

2. The applicant claimed that, in 2011, he was fired on by the Taliban when he was in a convoy on the road to Parachinar.  He also claimed that 20 days later, he was fired on by shop keepers when he went with relatives to collect rent from shops in Sadda, which is another town in the Kurram Agency.

The Tribunal’s reasons

1. The Tribunal identified a number of inconsistencies in the applicant’s evidence and considered some aspects of his evidence to be implausible.  The Tribunal accepted that the applicant had been fired on while travelling in a convoy but not by shopkeepers. The Tribunal did not accept that the applicant had been targeted by the Taliban. The Tribunal considered that the security situation in the Kurram Agency had improved significantly since 2011.  The Tribunal did not accept that the applicant faced a real chance of serious or significant harm if he were to return to the Kurram Agency. 

Ground 1

1. The first ground of review in the application filed on 21 December 2015 and amended on 16 November 2016 is:

   The Tribunal decision is affected by jurisdictional error because it made a decision relying on a fact, for which there was no evidence.

   Particulars

   (a)The applicant argued before the Tribunal that although the UNHCR presently considered that it was safe to return to Kurram Agency, violence in the Kurram Agency was cyclical, and there was likely to be a recurrence of violence in the reasonably foreseeable future (CB 224-230, especially CB 227.5 and 228.6)

   (b)The Tribunal rejected this argument on the basis of a UNHCR report indicating that it was safe to return to Kurram Agency, finding that the “UNHCR would have taken into account the durability of the truce in making its assessment that the situation was safe for people to return to certain parts of the Kurram Agency” (Reasons [49]).

   (c)The relevant UNHCR Report is cited at footnotes 17 and 18.

   (d)The UNHCR Report is publicly available, and exhibited to the affidavit of Mr Ghabrial.

   (e)There is no basis from which to infer or assume that the UNHCR in this report took into account the durability of the peace in a manner capable of supporting the Tribunal’s rejection of the applicant’s argument.

   (f)In the premise, there was no evidence to support the finding set out in particular (b).

2. This ground concerns paragraph 49 of the Tribunal’s reasons for decision, which is as follows:

   As I put to [the applicant], a UNHCR report on a mission to Kurram likewise said that it was evident that general peace had been restored in Upper and Lower Kurram.[1]  [The applicant] said that all these truces were violated but, as I indicated to him, I consider that UNHCR would have taken into account the durability of the truce in making its assessment that the situation was safe for people to return to certain parts of the Kurram Agency.[2]  [The applicant’s] representatives referred in their submissions to the fact that no [internally displaced persons] had returned to the Kurram Agency in the first three months of 2015 but I do not consider that this undercuts what was said in the report of the UNHCR mission to which I referred.  There may be many reasons why no IDPs returned to the Kurram Agency in the first three months of 2015 but the fact remains that the UNHCR report said that it was evident that general peace had been restored in Upper and Lower Kurram and that it was safe for people to return to certain parts of the Kurram Agency. (emphasis added)

   [1] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.

   [2] UNHCR Protection Cluster Pakistan, ‘Protection cluster mission to Kurram 22 - 26 April 2014’, CIS2F827D91286.

3. The applicant argued in relation to ground 1 that the Tribunal made an assumption, without any evidence, that the peace was durable.  The first respondent argued that the Tribunal had drawn an inference that the peace was durable.

4. In Shop, Distributive and Allied Employees Association v National Retail Association and Another (No 2) (2012) 205 FCR 227; (2012) 127 ALD 320; (2012) 219 IR 382; [2012] FCA 480, Tracey J said at [31]:

   The “no evidence” ground is available where legislation imposes a precondition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the precondition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [39]-[41] (per Gummow and Hayne JJ). The ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”: see Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (per Weinberg J). The point is put more bluntly in Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, Thomson Reuters, 2009) p 259 where the learned authors say that the “no evidence” ground “cuts out when even a skerrick of evidence appears.” (emphasis added)

5. I consider that there was material in the present case that permitted the Tribunal to reasonably infer that the peace was durable.  That material included the UNHCR report that concluded that it was safe for internally displaced people to return to certain parts of the Kurram Agency.  It was reasonably open to the Tribunal to infer that the UNHCR would not have drawn that conclusion if the peace were unlikely to last for a reasonable period. 

6. Obviously, the Tribunal’s task is to consider whether there is a real chance of certain events occurring in the reasonably foreseeable future.  The Tribunal is not required to be satisfied that certain events will definitely never occur.  In that context, it was open to the Tribunal to draw the inference it did. 

7. In addition, there was other evidence noted by the Tribunal that allowed it to draw the conclusion that the peace was durable.  That evidence was discussed by the Tribunal as follows:

   50.As I likewise put to [the applicant], the FATA Research Centre said in its Annual Security Report 2014 that the Kurram Agency had remained comparatively quiet in 2014 and that a total of two incidents, one bomb blast and one target killing, had been recorded during the reporting period, killing three people and injuring one.  As I put to him, in its quarterly report for the second quarter (April to June) of 2015 the FATA Research Centre said that the Kurram Agency remained relatively stable and that only three security incidents had been reported.  It said that one of these incidents had been a clash between militants and the security forces in the Tor Toot area resulting in the death of two militants, another had been a land mine blast in the Pewar area in which one member of the security forces had been injured and the third had been an attempted suicide bomb attack in Alizai in which both would-be suicide bombers had been killed while two or three other people had been injured.

   51.In their post-hearing submission [the applicant’s] representatives referred to the FATA Research Centre’s Security Report: Third Quarter July-September 2015 which they submitted provided a troubling update on the situation in Parachinar.  However the report refers to only six security incidents in the entire quarter.  While, as the report notes, this was double the level of the security incidents in the previous quarter, it is still very low.  The report stated that the six incidents were an IED attack which destroyed a school in the Sarka area of Central Kurram, a clash between the security forces and militants in Spar Kot and Tora Warai in Central Kurram in which one member of the security forces was injured and 11 militants were killed, two target killings in Lower Kurram in which four civilians were killed, a precision air strike in Central Kurram in which five militants were killed, and search operations in the Bagan area in which militants and members of the TTP were arrested and an IED was recovered.  While, as [the applicant’s] representatives noted, the report said that there were 19 more casualties than in the previous quarter, it is relevant that 16 of these casualties were militants killed by the security forces. (emphasis added)

   52.[The applicant’s] representatives submitted that this report supported [the applicant’s] evidence that any improvements in the security situation were temporary but I consider it clear that the current security situation in the Kurram Agency is dramatically different from that which pertained prior to [the applicant’s] departure.  [The applicant’s] representatives also referred in their submissions to two decisions of this Tribunal but I consider that the evidence upon which those decisions were based has been overtaken by more recent evidence.  They also referred to the South Asia Terrorism Portal’s ‘FATA Assessment 2015’ and ‘Pakistan Assessment 2015’ but, as stated above, the figure on which they based their submission that civilian casualties appeared to have risen again in 2015 (drawn from the South Asia Terrorism Portal’s ‘FATA Assessment 2015’) refers to civilian fatalities across the whole of the FATA to March 2015 and reflects the fact that, as stated in the assessment, there are ongoing military operations in North Waziristan and the Khyber Agency.  I do not accept that the material which they quoted casts doubt on the durability of the improvement in the security situation in the Kurram Agency as they submitted.

   (citations omitted)

8. In these circumstances, there was ample evidence for the Tribunal to draw the conclusion that the peace was durable.  Ground 1 is not made out.

Ground 2

1. The second ground of review in the application filed on 21 December 2015 and amended on 16 November 2016 is:

   The Tribunal constructively failed to review.

   Particulars

   (a)The applicant repeats particulars (a)-(e) of Ground 1.

   (b)The UNHCR Report was evidence central to the issues in the review.

   (a)In the premise, it is to be inferred (especially from particular (e)) that the Tribunal misunderstood the import of the UNHCR Report in such a manner as to amount to a constructive failure to review.

2. The relevant UNHCR report is exhibited to the affidavit sworn or affirmed by Anthony Hany Ghabrial on 15 November 2016.  It is headed “Protection cluster mission to Kurram, 22-26 April 2014”.  It deals with the question of whether it is “safe” for internally displaced people to return to various cities and towns in Upper and Lower Kurram Agency.  Its recommendations, on page 14, elucidate what the report means by the word “safe”.  The recommendations concern matters such as shelter, food distribution, and education.  It did not address issues such as persecution by the TTP. 

3. Significantly, the UNHCR report said at page 17, in relation to Parachinar City, that:

   Not a single Suni family has been returned while Shia [such as the applicant] have not been displaced.

4. The UNHCR report also said at page 17, in relation to the Parachinar sub village of the Mera Jan colony, that it is a Suni village and no families have returned.

5. In relation to Parachinar specifically, the UNHCR report said at page 6:

   In Parachinar city the two different sects are randomly intermingled. The damaged houses and shops belonging to Sunni IDPs/returnees inside Parachinar city are completely embedded in the main down town market area in the centre, however the rest of the city is living in rather vivid condition.

   Through the consultations, IDPs both Sunni and Shia expressed a willingness to return but were very forthright in their declaration that they would not be able to return without: confidence in consistent security; significant support in the short term regarding cash grant from the government (300,000 PKR in two instalments has been allocated for fully damaged houses and 100,000 PKR for partially damaged) and humanitarian relief of a broad nature; and the fulfilment of the government’s village level commitment to provide funds and ensure implementation of projects to restore basic services. Plans across sects and locations were uniform: some men will return and utilize the housing compensation to start rebuilding their home (it was noted that the compensation available is approximately 10% of the need to fully rebuild a house) and ensure that at least one room is habitable; in the meantime they will monitor the situation regarding service provision (especially schools and health clinics); they will also attempt to re-habilitate agricultural land. Only if and when conditions are adequate will whole families, especially school age children, return.

6. The applicant did not claim that his house had been damaged or that he could not return to Parachinar for the types of reasons addressed in the UNCHR report.  As the applicant is a Shia from Parachinar city, there seems to be nothing in the UNHCR report that would suggest that the applicant could not return there.

7. I am not persuaded that the Tribunal misunderstood the UNCHR report in any way that could have amounted to a jurisdictional error.  Ground 2 is not made out.

Ground 3

1. The third ground of review in the application filed on 21 December 2015 and amended on 16 November 2016 is:

   The Tribunal failed to comply with the obligation set out in the second sentence of s 420(1) of the Migration Act 1958 (Cth).

   Particulars

   (a)The applicant repeats particulars (a)-(e) of Ground 1.

   (b)The Tribunal “got” the information in the form of the UNHCR Report.

   (c)In the premise, it is to be inferred (especially from particular (e)) that the Tribunal misunderstood the import of the UNHCR Report in such a manner as to result in the Tribunal not having actively intellectually engaged with the whole of content of the report, and constructively, has failed to consider that report in a lawful manner.

2. This ground appears to concern s.424(1) of the Migration Act 1958 (“the Act”). Subsection 424(1) of the Act provides that:

   In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

3. It seems to me that the Tribunal did actively intellectually engage with the UNHCR report.  The Tribunal was not required to set out in detail in its reasons for decision its full understanding of every statement in the UNHCR report.  It was required to have regard to the UNHCR report.  It clearly did, in paragraph 49 of its reasons for decision, which is set out above.  The Tribunal also set out in that paragraph its reasons for taking a different view of the position in Parachinar from the view taken by the applicant.  The Tribunal was not required to do more, and it was entitled to take a different view from the view taken by the applicant.  Ground 3 is not made out.

Ground 4

1. The fourth ground of review in the application filed on 21 December 2015 and amended on 16 November 2016 is:

   The Tribunal failed to consider a claim that was made, or arose on the materials, to the effect that the applicant was owed complementary protection obligations by reason of generalised violence.

   Particulars

   (a)The Tribunal found at Reasons [53] that some level of indiscriminate violence occurred in the Kurram Agency (generalised violence).

   (b)The applicant advanced submissions sufficient to raise a claim to fear harm from indiscriminate violence of this kind (CB 224-230, and especially under the heading “General Security Situation in Kurram Agency”).

   (c)The Tribunal did not set out in its reasons how it evaluated this claim from which it is to be inferred that it did not consider the claim.

2. Although this ground raises an issue of complementary protection, the issue in the applicant’s submission about generalised violence at CB225 is actually under a heading concerning the well-foundedness of the applicant’s fear of persecution, and concludes with a claim that the general security situation supports the applicant’s claim to fear persecution.  A separate heading in the applicant’s submissions at CB224 deals with complementary protection in two paragraphs.  The applicant essentially submitted that the grounds he relied on in support of his refugee claim also supported his complementary protection claim.

3. The Tribunal dealt with the issue of complementary protection in paragraphs 58 to 60 of its reasons for decision as follows:

   Are there 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 he will suffer significant harm?

   58.In their submission dated 12 October 2015 [the applicant’s] representatives submitted that there was a real risk that he would be arbitrarily deprived of his life or that he would be subjected to cruel or inhuman treatment or degrading treatment if he returned to Pakistan. However, having regard to my findings of fact above with regard to the improved security situation in the Kurram Agency in general and on the Thal-Parachinar road in particular, I do not accept that there are 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 he will suffer significant harm at the hands of the Taliban, Daesh or other extremist Sunni groups. Having regard to my findings of fact above I do not accept that he was being targeted by the Taliban before he left Parachinar nor that there is a real risk that he will suffer significant harm from the Taliban or from the shopkeepers in Sadda who are not paying his family their rent. It is clear from his evidence that neither he nor his family are dependent upon the rent for their survival and I do not accept on the evidence before me that the fact that the shopkeepers are not paying his family their rent amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act 1958.

   59.Having regard to the assessment of the Australian Department of Foreign Affairs and Trade referred to in paragraph 55 above, I do not accept that there are 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 he will suffer significant harm because he will be returning from a western country or specifically from a western country with a Christian heritage like Australia (as submitted by his representatives). I accept that he will be returning to Pakistan as a failed asylum-seeker but, having regard to my findings of fact above, I do not accept that there is a real risk that he will be put in gaol for three months because he is a Shia Muslim if he is deported from Australia as a failed asylum-seeker as he claimed at the hearing before me he had been told by a friend. Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 56 above, I do not accept that there are 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 he .will suffer significant harm because he will be returning to Pakistan as a failed asylum-seeker or specifically a Shia failed asylum-seeker.

   60.I have considered the totality of [the applicant’s] circumstances as a Shia Bangash from the Kurram Agency who has spent an extended period as an asylum-seeker in Australia. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are 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 he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

1. It is clear that the Tribunal, in considering complementary protection, relied in part on its earlier discussion of the general security situation in the Kurram Agency. The applicant virtually invited that approach, because the applicant expressed his claims in the same way. Essentially, the Tribunal concluded that the general security situation was such that the applicant did not face a real risk of significant harm if he returned to Parachinar.  Ground 4 is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 31 January 2017