CSZ17 v Minister for Immigration

[2018] FCCA 332

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 332

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the Tribunal did not fail to comply with s 414 of the Act – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 414, 426, 476

Applicant: CSZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1942 of 2017

Judgment of: Judge Street

Hearing date: 14 February 2018

Date of Last Submission: 14 February 2018

Delivered at: Sydney

Delivered on: 14 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1942 of 2017

CSZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 May 2017 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. Materially, the applicant arrived in Australia on 11 October 2011 as the holder of Student Subclass 572 visa permitting a stay until 15 March 2013. The applicant departed Australia on 25 June 2012 to travel to Pakistan and returned to Australia on 24 July 2012. The applicant applied for the protection visa on 24 July 2013.

3. On 13 February 2014, the delegate found the applicant failed to meet the criteria for the grant of a visa. On 7 March 2014, the applicant sought a review of the decision before a differently constituted Tribunal that affirmed the decision on review. On 23 August 2016, a Judge of this Court quashed the decision of the differently constituted Tribunal and remitted the matter for further consideration.

4. The applicant’s claims were in summary that he resided in Swat Valley where he worked as a maths teacher at a girls’ school from 20 June 2007. The applicant said the Taliban controlled the area and prohibited education and threatened teachers in the school to stop educating girls or else, they would be beheaded and their families harmed. The applicant continued to teach.

5. On 4 March 2008, the applicant alleged that a masked militia man approached the applicant and threatened him. The applicant claimed he received warning letters from the Taliban which were posted on the front door of his house. The applicant alleged on 19 May 2008, the Taliban threw a grenade at his house and following this event, they threw a cracker at his house.

6. The applicant stated the Taliban were looking to kill him in order to make an example of him. The applicant alleged he went into hiding. The applicant alleged that meanwhile, the Taliban set up check points around the district. The applicant alleged on 15 November 2008, the Taliban executed one of the applicant’s colleagues including his children. The applicant alleged that in December 2008, the applicant managed to escape the district by disguising himself in a burqa. The applicant alleged on 31 December 2007, the Taliban set fire to his house.

7. The applicant alleged on 11 January 2008 while the applicant was living in Peshawar, he was approached by a man he did not know. The applicant alleged the man claimed to know the applicant and threatened to kill him because he followed Western culture. The applicant alleged on 8 March 2008, two men riding a motorbike conducted a ride by shooting of the applicant’s car.

8. The applicant provided a further statement in which he alleged once he had escaped the Swat district, he continued to study in Peshawar, finishing his high school education in April 2010. The applicant alleged that on 18 March 2012, following his departure to Pakistan for Australia, a member of the Taliban telephoned his father and ordered that the applicant be brought to Islamic justice in the Swat region.

9. The applicant alleged on 3 May 2012, the Taliban kidnapped and subsequently killed the applicant’s cousin. The applicant alleged the Taliban called the applicant’s father and told him that the cousin had been kidnapped because the applicant’s father had not obeyed their demands. The applicant alleged his father told the applicant not to contact him or anyone else in the applicant’s family ever again because of the applicant’s father did not want to risk the life of anyone else. The applicant returned to Pakistan on 25 June 2012 to look for his family, but he could not find them and was told by friends not to try and contact his family.

10. The applicant provided to the delegate an undated letter from his father in which the applicant’s father claimed he had been abducted by the Taliban. The applicant told the delegate that his father had been held for a period of six or seven months and was released after paying a ransom of approximately AUD200,000.00.

11. At the hearing before the differently constituted Tribunal, the applicant said that the last occasion on which he had spoken to his parents was in in December 2014. At the hearing before the currently constituted Tribunal, the subject of the application in this Court, the applicant told the currently constituted Tribunal that he had not spoken to his family since April 2013. The applicant alleged that he had only became aware his family was missing in December 2014 after unsuccessfully attempting to contact his mother.

The Tribunal’s decision

1. On 31 August 2016, the currently constituted Tribunal wrote to the applicant identifying that the matter had been remitted for reconsideration. The applicant was invited to attend a hearing and attended that hearing on 14 March 2017 to give evidence and present arguments. The applicant was invited to attend attended a further hearing on 19 March to give evidence and present arguments.

2. On 30 August 2016, two certificates were issued and provided to the currently constituted Tribunal. Those certificates and the documents, the subject of the certificates were disclosed to the applicant and put to him during the hearing. Accordingly, the existence of the certificates in the present case did not give rise to any practical injustice or denial of procedural fairness in the conduct of the review by the Tribunal.

3. The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the applicant’s claims and fears and made reference to the information provided by the applicant to the differently constituted Tribunal. The Tribunal identified the material provided by the applicant to the current Tribunal including relevantly a letter from the Australian Red Cross dated 27 May 2015 stating that the local NSW team of the International Tracing Service had met with the applicant who approached them requesting assistance dealing with the location of his missing family. The letter stated that the applicant advised them that he had no contact with them since December 2014. The letter stated that they would provide emotional support until such time as they could collect more information and potentially open a tracing case.

4. The Tribunal was also provided a further letter dated 27 April 2017 in relation to efforts to locate the applicant’s alleged missing family and that they had been unsuccessful in locating the applicant’s family. The applicant told the Tribunal that the last time he spoke to his parents and siblings was December 2014. The Tribunal summarised the applicant’s evidence before the current Tribunal and issues raised with the applicant. The Tribunal made express reference to the applicant providing on 27 April 2017, the letter from the Australian Red Cross referred to above.

5. The Tribunal was satisfied the applicant grew up in Swat Valley and is a Sunni Muslim and a Christian and the applicant finished year 10 at the Peshawar Model School in May 2007. The Tribunal also accepted that the applicant had initiated an Australian Red Cross tracing enquiry in May 2015 as evidenced by the documents provided from the Australian Red Cross. The Tribunal accepted that the applicant was in a motor vehicle accident in January 2015.

6. The Tribunal referred to country information in relation to teachers in Swat Valley and referred to having very carefully considered the applicant’s claims and evidence that he was a teacher at a girls’ school and that he was threatened by the Taliban. The Tribunal, however, was not satisfied that the applicant was a teacher in Swat Valley in 2007 and 2008. The Tribunal was also not satisfied that the applicant or members of his family were threatened, abducted or attacked by the Taliban.

7. The Tribunal summarised in detail six separate matters in relation to the applicant’s credibility considered by the Tribunal in relation to the adverse credibility finding. Firstly, that there were a number of inconsistencies in the various accounts which the applicant had provided to the Department and the Tribunal. The inconsistencies were summarised by the Tribunal. The Tribunal then referred to the fact that while the applicant gave evidence that he attended a school in Peshawar for one year and a few months for his Secondary School Certificate, this does not accord with independent sources which suggest that the course is two years. The Tribunal noted when asked about this, the applicant was unable to explain it and agreed that the course was two years.

8. The Tribunal then referred to the applicant having told the Tribunal that he delayed applying for a visa from October 2011 to July 2013 because he came to Australia to study and was not planning to apply. The Tribunal did not accept that the applicant went to look for his family as the Tribunal did not accept that his family was missing. The Tribunal found the fact that he returned to Pakistan indicates that he did not have a genuine fear of returning and that the Taliban were not looking for him.

9. Next, the Tribunal referred to having discussed with the applicant at the hearing, the Pakistan Swat Valley Education Site which lists all of the government and private primary schools in the region and that a particular intermediate college for years 11 and 12 was not found in the primary section. The applicant said that there are many schools and not all schools are on the list. The Tribunal accepted while it is possible there is an error in the school site information, there is some weight, given it is an official regional education site when considered cumulatively with the other inconsistencies. The applicant did not know the motto of the school and the Tribunal accepted it may be possible that he had forgotten, but would have been expected to remember.

10. The Tribunal then referred to the applicant having provided evidence of recent conversations held with a psychologist in which it is clear that he has provided information to the psychologist which is contradictory to that provided to the Tribunal. The Tribunal summarised those matters in four dot points and in that regard, the Tribunal found part of what was said by the applicant’s psychologist to be in direct contradiction to his evidence that he was a teacher in Swat, was threatened and shot at, that his cousin and colleagues were killed and that his family is missing. The Tribunal furthermore indicated that the applicant would like to return to Pakistan next year to marry suggests that he does not have a real fear of returning.

11. Next, the Tribunal referred to the information of the applicant provided to the Tribunal at the hearing about his father’s abduction and his family being missing being vague and did not contain current detail commensurate with telling the truth. The Tribunal did not accept that the applicant would not have found out from his mother or siblings, all the details about his father’s abduction, including how long he was abducted and whether he was hurt, given that he felt that he was to blame for the abduction. The Tribunal did not accept the applicant’s explanation that he was confused if, in fact, his family were missing after the date alleged by the applicant.

12. Considered cumulatively, these inconsistencies led the Tribunal to find that that it was not satisfied that the applicant has provided a truthful account of the events that took place in Pakistan or his fear of returning. The Tribunal referred to the car accident and was satisfied that his short-term memory loss did not impact in any significant way on the evidence that he provided at the hearing.

13. The Tribunal was not satisfied that the applicant’s account of events in Pakistan is truthful and did not accept that a number of the documents provided by the applicant to support the version of events in Pakistan are genuine. The Tribunal identified the documents that it rejected in that regard and referred to document fraud being endemic in Pakistan and accordingly, did not give the documents any weight.

14. The Tribunal accepted that the applicant initiated a tracing inquiry with the Australian Red Cross as evidenced by the documents provided however, the Tribunal was satisfied that this action was taken to bolster his refugee claim and not because his parents were genuinely missing, given the psychologist’s report and the other evidence discussed by the Tribunal above. The Tribunal referred in the consideration of whether the applicant met the criteria before the Refugees Convention, that the Tribunal disregarded this evidence pursuant to s 91R(3) of the Act.

15. The Tribunal was not satisfied the applicant would work as a lecturer if he returned to Pakistan and noted that he studies civil engineering in Australia. The Tribunal was not satisfied that the applicant was a teacher and based on the information that the applicant gave to his doctor, the Tribunal was not satisfied that he would lecture if returned. The Tribunal was satisfied that the applicant suggested he would do so in order to try and bolster his refugee claims.

16. Because of the adverse credibility findings identified by the Tribunal in its reasons, the Tribunal was not satisfied the applicant taught mathematics at a primary school in June 2007 to May 2008. The Tribunal was not satisfied that the applicant was threatened on 4 March 2008. The Tribunal was not satisfied that he received one, five or six warning letters. The Tribunal was not satisfied that the Taliban threw a grenade at his house or a cracker bomb in May 2008.

17. The Tribunal was not satisfied he was hiding from the Taliban. The Tribunal was not satisfied that he was trapped in the district. The Tribunal was not satisfied that he wore a burqa to escape with the help of friends. The Tribunal was not satisfied that in December 2008, the Taliban set fire to his house. The Tribunal was not satisfied that the applicant studied at Peshawar from January or February 2009. The Tribunal was not satisfied that he received unknown calls and threats.

18. The Tribunal was not satisfied that the motor bike incident alleged on 10 August 2010 when two men shooting at him occurred. The Tribunal was not satisfied that on 18 March 2012 an unknown person from the Taliban called his father. The Tribunal was not satisfied that on 3 May 2012 his cousin was kidnapped. The Tribunal was not satisfied that his father was kidnapped in mid-2013 and that he sold land to pay a bribe and that his father was held for six or seven months. The Tribunal was not satisfied that the applicant’s family disappeared after December 2014. The Tribunal was not satisfied the applicant would work if he returned to Pakistan.

19. It was in these circumstances that the Tribunal was not satisfied there was a real chance of serious harm if the applicant were to return to Pakistan in the reasonably foreseeable future on the basis of him being a teacher, or because he has disobeyed, or had any kind of history with the Taliban in the past. The Tribunal was not satisfied of the applicant’s well-founded fear of persecution for reasons of membership of a particular social group of former teachers or educators.

20. The Tribunal was not satisfied the applicant disobeyed the Taliban or was threatened with harm for this reason. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for actual or implied anti-Taliban political opinion based on activities in the past. The applicant has not suggested that suggested that he will be harmed for any reason other than that he was a teacher who disobeyed the Taliban. After referring to country information, the Tribunal was not satisfied there is a real chance being more than a remote or insubstantial chance of persecution for reasons of anti-Taliban political opinion.

21. The Tribunal did not accept that the applicant would face a real chance of significant harm on the basis of his Pashtun ethnicity. The Tribunal was not satisfied there was a real chance of serious harm for reasons of the applicant’s nationality or any other reasons enumerated in the Convention definition. It was in these circumstances that the Tribunal was not satisfied the applicant has a well-founded fear of persecution in any of the reasons set out in the Convention were he to return to Pakistan in the reasonably foreseeable future.

22. The Tribunal then turned to whether the applicant was entitled to complementary protection and correctly identified the relevant criteria in that regard.

23. The Tribunal referred to taking into account the applicant returning to Swat Valley including Peshawar where he had moved prior to coming to Australia and where the Tribunal found his family are living. The Tribunal noted it was not satisfied the applicant was a teacher who had disobeyed the Taliban and that the Tribunal was not satisfied that there is a real risk that the applicant would suffer significant harm from the Taliban because he has been a teacher or because he had disobeyed them in the past.

24. The Tribunal referred to country information and it was satisfied that the risk of harm from attacks is remote is far-fetched and is not a real risk. The Tribunal took into account the applicant’s claims and evidence. The Tribunal did not accept that the applicant’s family are missing and given the applicant’s comments to the psychologist apparently his father is working as a lawyer in Peshawar and that he would have family support on return.

25. It was in these circumstances the Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan he will suffer any of the kinds of significant harm set out in the legislation.

26. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. At the commencement of the hearing, 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 power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

1. 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.

The Applicant’s submissions from the bar table

1. From the bar table, the applicant made reference to the steps he took in Australia through the Australian Red Cross to try and trace his family. The applicant alleged that there had been a breach of s 91R of the Act and that the Tribunal had not taken into account the Australian Red Cross tracing in determining complementary protection.

2. There is no contravention of s 91R of the Act which concerned the applicant’s claims in respect of the Refugee Convention and it was open to the Tribunal for the reasons given by the Tribunal to find that the applicant’s conduct was engaged in for the sole purpose of strengthening his refugee claims in relation to the alleged tracing at least in relation to the communications with the Australian Red Cross.

3. The Tribunal’s reasons are not to be read with a keen eye for error. On a fair reading, the Tribunal’s reasons reflect disregarding the communications to the Australian Red Cross in respect of the applicant’s claims under the Refugees Convention.

4. The Court is not satisfied that the Tribunal disregarded the communications with the Red Cross in considering the applicant’s claims for protection on the grounds of complementary protection. In that regard, materially the communications were sent in the context of the applicant asserting that his family disappeared after December 2014. The Tribunal made an express finding to the contrary. In those circumstances there was no need for the Tribunal to make any further finding in relation to the tracing steps taken by the applicant.

5. No claim was advanced by the applicant before the Tribunal by reason of having put in place the tracing request and no such claim fairly arise on the material before the Tribunal. The applicant’s complaint in relation to the Australian Red Cross tracing steps does not identify any jurisdictional error by the Tribunal.

6. The applicant also submitted that he had been accepted by the delegate as being a teacher and that the Tribunal had made a different finding. It was open to the Tribunal to make a different finding from that of the delegate in circumstances where it is apparent that the Tribunal raised with the applicant the issue of credit of the applicant in relation to his claims in the conduct of the review.

7. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review.

8. The adverse credibility findings were open to the Tribunal for the detailed reasons given by the Tribunal. Those reasons cannot be said to be illogical or unreasonable. The applicant’s disagreement with the adverse credibility findings does not identify any jurisdictional error. Nothing said by the applicant from the bar table identified any jurisdictional error.

9. The ground in the application is as follows:

   The second respondent failed to comply with its obligation under s 414 of the Act to review the decision of the first respondent.

   Particulars

   (a) The second respondent, at [60], did not accept for the purposes of the complementary protection criteria in s 36(2)(aa) of the Act that the applicant's family were missing.

   (b) In making the above finding, the second respondent failed to consider, or to make findings on, the applicant's claim that he had approached the Australian Red Cross International Tracing Service to request assistance dealing with location of his missing family.

The Court’s reasoning

1. On a fair reading of the Tribunal’s decision as a whole, the Court does not accept that the Tribunal in relation to complementary protection failed to take into account the Australian Red Cross tracing request that the applicant had initiated in respect of his alleged missing family whilst in Australia.

2. Further, given the adverse finding by the Tribunal rejecting the applicant’s assertion that his family was missing, it was not necessary for the Tribunal to make any express finding in relation to the Australian Red Cross tracing service in relation to complementary protection. Further, no claim to fear harm was advanced by the applicant by reason of his having initiated the Australian Red Cross tracing service and no such claim fairly arose on the material before the Tribunal.

3. The Tribunal did not fail to comply with s 414 of the Act nor did the Tribunal fail to comply with the requirements of s 425 of the Act. The Court finds, in light of the reasons summarised above, that the applicant had a real meaningful opportunity to give evidence and present arguments.

4. In the circumstances of the present case, and in particular the applicant’s delay in applying for protection and his return to Pakistan, the adverse credibility findings were clearly open for the reasons given by the Tribunal and cannot be said to be illogical or irrational. Accordingly, no jurisdictional error as alleged in ground 1 is made out.

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

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 March 2018