Cuf15 v Minister for Immigration - [2017] FCCA 921

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUF15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 921

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – AAT affirmed delegate’s decision not to grant a Protection visa to applicant – applicant alleges jurisdictional error committed by AAT failing to properly consider country information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

BZAHN v Minister for Immigration and Border Protection [2016] FCA 281

CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223

Applicant:

CUF15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3494 of 2015

Judgment of:

Judge Dowdy

Hearing date:

7 June 2016

Date of Last Submission:

20 June 2016

Delivered at:

Sydney

Delivered on:

16 May 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Williams of Counsel

Counsel for the Respondents:

Ms P Blackadder

Solicitors for the Respondents:

Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Amended Application filed in this Court on 7 June 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3494 of 2015

CUF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant in this proceeding is a male citizen of Pakistan aged 35 years, having been born on 4 September 1981.
By Amended Application filed in this Court on 7 June 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 11 December 2015 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 May 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Further, the Applicant seeks both the costs of this application and a writ of prohibition restraining the First Respondent, his employees, officers, delegates or agents from acting upon or giving effect to the decision.

Background

The Applicant applied for a Protection visa on or about 15 January 2013, having arrived on Christmas Island on 9 August 2012 as an illegal maritime arrival.

Claims for Protection

In his Entry Interview conducted on 1 September 2012 and 2 November 2012 (Entry Interview) the Applicant claimed that he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 921
Decision Date: 16 May 2017

CaseChat Overview and Summary

This case concerned an application for a Protection visa by an individual who claimed to fear persecution in Pakistan. The applicant alleged he was a member of the Turi tribe and an observant Shia Muslim, and that his home region of Parachinar had deteriorated significantly due to conflict between the Taliban and the Shia population. He detailed incidents of violence, including bombings and threats, and stated that his business travel had become dangerous. The applicant left Pakistan in February 2012, leaving his wife and children behind. The Minister for Immigration and Border Protection was the respondent. The matter was heard by Dowdy J in the Federal Court of Australia.

The primary legal issue before the Court was whether the decision to refuse the Protection visa was affected by jurisdictional error, specifically due to an insufficient logical or evidentiary basis for the decision. This required the Court to consider the criteria for granting a Protection visa under section 36 of the Migration Act 1958 (Cth), including the concept of a "well-founded fear of being persecuted" under the Refugee Convention and the meaning of "significant harm" as defined in section 36(2A) of the Act. The Court also had to determine the extent to which it could review the Tribunal's assessment and reliance on country information.

Dowdy J reasoned that the applicant's sole ground of appeal, alleging jurisdictional error due to a lack of logical or evidentiary basis, was not made out. The Court affirmed that the weight and accuracy of country information are matters for the Tribunal to determine as part of its fact-finding function, not for the Federal Court to review. Citing established Full Court authorities, the Court held that it is not an error of law or jurisdictional error for the Tribunal to rely on country information, nor is it an error to choose between competing sources of country information or to assign weight to it. The Court emphasised that engaging in its own assessment of the truth of country information would constitute merits review, which is beyond its power.

The Court therefore dismissed the applicant's appeal, finding that the grounds relied upon were not established.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Grounds of the Amended Application filed in this Court on 7 June 2016 are as follows (numbering sequentially corrected):Ground 1: Insufficient logical or evidentiary basis for the decision 1. The decision by the second respondent was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the finding and the material upon which it relied to make that assessment In my view the Ground relied upon by the Applicant is not made out and must fail. First, it is clear that the weight and accuracy of country information is one for the Tribunal and not for this Court. At [11] of NAHI the Full Court stated as follows:-The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform… By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that. To similar effect, in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 the Full Court of the Federal Court comprised of Gray, Kiefel and Lander JJ stated at [63]:-The appellant has recognised that the appeal could not succeed if the appellant’s only complaint was as to the weight which the RRT had given to the various items of country information: QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The appellant also recognised that he could not establish jurisdictional error by showing that the RRT preferred particular country information to other country information: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104. The effect of these authorities is that as a general proposition, the Tribunal does not fall into error when it makes a choice between competing country information and that the choice of and weight to be given to such information is a matter for it.

Ratio Decidendi

Legal Principle Established

In his Statutory Declaration of 12 January 2013 (Statutory Declaration) which formed part of his Protection visa application the Applicant made the following factual claims:a)He was born in the village of Nastikon in Parachinar within the Kurram Agency and when he was approximately 1 year old his family moved to Parachinar city. b)He belonged to the Turi tribe and was an observant Shia Muslim. He regularly attended his local mosque in Parachinar.c)In 2007, the security situation in Parachinar rapidly deteriorated. There was intense fighting between the Taliban and the Shia population of the region. Many were killed and properties were burned and destroyed. Since then, the Taliban had blocked all the routes to Parachinar, starving the city of supplies. The Taliban were constantly terrorising Turi Shias. There were executions and beheadings, people’s limbs were cut off and there were regular suicide bombings. d)The Applicant and his father owned a fabric shop in Parachinar city and the Applicant had to travel to Peshawar and Lahore to source supplies for the shop. This travel for business was extremely dangerous.e)In February 2012, the mini-bus on which the Applicant was travelling from Peshawar to Parachinar was targeted by the Taliban. A road-side bomb exploded and caused the bus to overturn. Two of the passengers were killed and the Applicant’s friend sustained head injuries, although the Applicant himself was not badly injured. f)Another incident “really shook” the Applicant. A large suicide bombing took place in Kurram Bazaar in February 2012. The Applicant was very close to being caught up in the bombing and a friend he was with in the bazaar was killed in the explosion. g)From 2010, the Applicant also began receiving threatening phone calls 2-3 times a month, which he believed were from Taliban supporters. The callers knew his name and address and would say that they knew he was a Shia from the Kurram Agency and that they wanted to catch up with him. They would sometimes say that if they saw him in Peshawar or Lahore they would kill him. h)After February 2012, the Applicant decided to leave Pakistan. His wife and four children remained in Parachinar. The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34]-[41] as follows:[34] The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[35] A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). [36] Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is:A non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...[37] A person who is not a citizen of Australia is a “non-citizen”.[38] Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).[39] The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).[40] Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being if:(a) the non-citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non-citizen; or(c) the non-citizen will be subjected to torture; or(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non-citizen will be subjected to degrading treatment or punishment.[41] The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].