CWR16 v Minister for Immigration - [2017] FCCA 2554

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWR16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2554

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal misapplied or misunderstood the correct test for systematic conduct – whether the Tribunal had regard to irrelevant considerations – the Tribunal erred by misapplying the real chance test when assessing the applicant’s claims – the Tribunal erred by failing to consider the risk of harm from sectarian violence – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Conduct of practitioners – duty to Court – leave sought to file an amended application to include a fifth ground without notice at hearing of the matter – application refused.

Legislation:

Migration Act 1958 (Cth)

Applicant:

CWR16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2715 of 2016

Judgment of:

Judge Smith

Hearing date:

19 October 2017

Date of Last Submission:

19 October 2017

Delivered at:

Sydney

Delivered on:

2 November 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M Rivera, Rivera Legal

Solicitors for the Respondents:

Mr A Keevers, Sparke Helmore

ORDERS

The applicant’s application to amend his application to include a further ground is refused.
The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2715 of 2016

CWR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 7 September 2016. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

Background

The following background is largely taken from the written submissions of the first respondent (without alteration):
2The applicant, a citizen of Pakistan, visited Australia from 23 July 2013 to 2 September 2013 as the holder of a visitor (subclass 600) visa. He returned on 29 January 2014 on a second visitor visa, which was valid to 28 February 2014.
3On 26 February 2014, the applicant applied for a protection (class XA) visa. The applicant claimed to fear harm in Pakistan on the basis of his Christian faith. He provided a statement dated 25 February 2014 in support of his protection visa application, which referred to various news articles and raised the following factual claims (expanded upon in the interview with the delegate), and a statutory declaration dated 26 November 2015:
(a)From 2006 to February 2012, the applicant volunteered with the Full of Grace Church. From March 2012, he was paid a salary and would visit different areas to evangelise.
(b)From 23 July 2013 to 2 September 2013, the applicant visited Australia. He had no reason to seek protection at that time.
(c)On 22 September 2013, the Taliban bombed a Church in Peshawar, the applicant’s Church organised a “program” to condemn the attack, and the applicant started receiving calls from “the Mullahs” who accused…

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 2554
Decision Date: 2 November 2017

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming the refusal of his protection visa application. The applicant claimed to fear harm in Pakistan due to his Christian faith, alleging various incidents including threats from religious figures, an attack by a group of Muslim men, and detention and mistreatment by police. The Tribunal had found the applicant not to be a truthful or credible witness and did not accept many of his factual claims, ultimately concluding that he did not face a real chance of serious harm if returned to Pakistan.

The primary legal issues before the court were whether the Tribunal had misapplied or misunderstood the correct test for assessing the applicant's claims, specifically the "real chance" test, and whether it had regard to irrelevant considerations. The applicant also contended that the Tribunal erred by failing to consider the risk of harm from sectarian violence.

Justice Smith found that the Tribunal had not made a jurisdictional error. The court reasoned that the Tribunal had properly considered the applicant's claims, including those related to sectarian violence, and had applied the correct legal test by assessing whether there was a "real chance" of serious harm. The Tribunal's findings of fact, including its assessment of the applicant's credibility and the rejection of certain claims, were within its purview and did not constitute an error of law. The court also noted that an application to file an amended application to include a fifth ground without notice at the hearing was refused.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The following background is largely taken from the written submissions of the first respondent (without alteration):2The applicant, a citizen of Pakistan, visited Australia from 23 July 2013 to 2 September 2013 as the holder of a visitor (subclass 600) visa. He returned on 29 January 2014 on a second visitor visa, which was valid to 28 February 2014.3On 26 February 2014, the applicant applied for a protection (class XA) visa. The applicant claimed to fear harm in Pakistan on the basis of his Christian faith. He provided a statement dated 25 February 2014 in support of his protection visa application, which referred to various news articles and raised the following factual claims (expanded upon in the interview with the delegate), and a statutory declaration dated 26 November 2015:(a)From 2006 to February 2012, the applicant volunteered with the Full of Grace Church. From March 2012, he was paid a salary and would visit different areas to evangelise.(b)From 23 July 2013 to 2 September 2013, the applicant visited Australia. He had no reason to seek protection at that time.(c)On 22 September 2013, the Taliban bombed a Church in Peshawar, the applicant’s Church organised a “program” to condemn the attack, and the applicant started receiving calls from “the Mullahs” who accused him of converting children to Christianity.(d)On 29 November 2013, in Nowshera, a group of Muslim men attacked the applicant and his “team”.(e)On 18 January 2014, the police arrested the applicant. The applicant was detained, bashed, kicked and starved for four days. The police told the applicant that Taliban militants and the Mullahs were determined to convert him to Islam and that if he refused, the Taliban militants would kill him.(f)On 22 January 2014, the police drove the applicant to his “area” and ordered him to walk on the street “for the neighbours to watch”. The Mullahs ordered the “men” to take the applicant to his house. Neighbours and the men were guarding the area and militants were outside the applicant’s house.(g)In the middle of the night, the applicant left his house and ran to a Christian family’s home. The Christian family took the applicant to Islamabad.(h)On 27 January 2014, the applicant left Pakistan. He entered Australia on a visa pre-arranged by his Church for the purpose of attending a conference.4On 12 September 2014, a delegate of the Minister refused to grant the protection visa. On 10 October 2014, the applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision.5On 9 December 2015 and 16 March 2016, the applicant appeared before the Tribunal to give evidence and present arguments with two representatives on the first day.6Prior to and at the first Tribunal hearing, the applicant’s representative provided written submissions, which referred to various statutory declarations, affidavits, and news articles relied on by the applicant, and provided a chronology of the applicant’s factual claims. The submissions expanded on the applicant’s factual claims, including that there was a fatwa against him labelling him a “blasphemer and deserving of execution”, that the local authorities had made continuing efforts to locate him, and that he feared being arrested on return, subjected to abuse and sentenced to death. The applicant also claimed that he was not able to properly convey his story to the delegate due to his fear of the Urdu interpreter. The applicant’s representative provided further submissions, both prior to and following the second Tribunal hearing, which were in substantially similar terms.7Following the first Tribunal hearing, by letter dated 10 December 2015, the Tribunal invited the applicant to comment on or respond to information. The information related to inconsistencies in the applicant’s evidence at the hearing and in his statement dated 25 February 2014, his statutory declaration dated 26 November 2015, departmental records, and the interview with the delegate about:(a)whether he was involved in the “reconversion” of Christians;(b)whether he received threatening phone calls from Mullahs after September 2013;(c)the number and identity of the people who had arrested, detained and interrogated him;(d)the circumstances in which he lodged his visitor visa application; and(e)the claimed threat to blow up the hotel where his church group held prayers in 2013.8The applicant responded to this information by a further statutory declaration dated 18 January 2016. The applicant largely attributed the inconsistencies to miscommunication between him and the migration agent who prepared his 25 February 2014 statement. The applicant also explained that he used the terms “mullah,” “imam,” “Taliban,” and “Muslim clerics” interchangeably.9On 7 September 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.Tribunal’s decision10The Tribunal did not find the applicant to be a “truthful or a credible witness,” and did not accept the applicant’s explanations for discrepancies in his claims The Tribunal did not accept the applicant’s claims that:(a)he had any involvement in counselling women or that he spoke to Muslims in remote areas about the virtues of Christianity;(b)he encouraged or persuaded anyone to convert to Christianity;(c)on 18 January 2014, he was detained or abducted by police and extremists, accused of converting Muslims to Christianity, tortured and forced to agree to convert to Islam;(d)he had no choice but to flee Pakistan immediately because the Pakistani police would have pursued him throughout the country;(e)he was threatened by a mob in Nowshera because they believed he was relocating and converting Muslim children; or(f)a fatwa had been issued against him. 11The Tribunal found that the applicant’s claims were “concocted to form the basis of a claim for protection in Australia”, and that the applicant’s supporting statements did not contain credible information.12The Tribunal accepted that from 2006, the applicant was a Christian and an employee and leading member of Full of Grace Church; his church had had difficulty constructing a new church for the congregation; in 2013, a threat was made against the church; and in 2002, the applicant was injured during an outbreak of sectarian violence.13However, the Tribunal was not satisfied that the applicant faced a real chance of serious harm in Pakistan because:(a)he was a leading member of the Full of Grace Church;(b)of his Christian religion, including as a result of sectarian violence against Christians;(c)of extremist attacks on Christians in Rawalpindi;(d)he would be accused of or charged with blasphemy; or(e)of his past membership of the Human Rights Development and Welfare organisation (HRDWO). 14Having considered the applicant’s claims singularly and cumulatively, the Tribunal found that the applicant did not face a real chance of serious harm in Pakistan. Based on its anterior findings, the Tribunal found that the applicant did not face a real risk of significant harm if returned to Pakistan.(Emphasis in original)

Ratio Decidendi

Legal Principle Established

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