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

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

2. 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

1. 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

1. 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 decision

   10The 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)

Consideration

1. There are four grounds in the application.

2. At the hearing of the matter the solicitor for the applicant sought leave, without notice, to file an amended application which included a fifth ground. That application did not succeed for the reasons I gave at the hearing.

3. There are many such applications made in this Court, even though applicants are uniformly given an opportunity to amend their application once the Minister has prepared, filed and served a bundle of documents relevant to the decision under review. This application did not get off to a good start when, having failed to file any written submissions as required by the Court orders, the solicitor for the applicant arrived at the hearing more than 10 minutes late carrying a takeaway coffee. It is difficult to imagine a display of greater disrespect to the Court. I expect that it will not occur again.

First ground:   The Tribunal misapplied or misunderstood the correct test for “systematic conduct”

1. This ground contains two particulars, as set out below:

   Particulars

   a.At [154]–[155] of its decision, the tribunal considered that a threat of violence made in 2013 was not carried out, was an isolated incident and that the applicant’s church was not subjected to repeated threats of violence.

   b.It was unnecessary for the applicant to establish that conduct be regular or repeated because a single act may suffice to establish persecution.

   (Emphasis in original)

2. It is correct to say that conduct does not have to be repeated in order to constitute persecution. However, the Tribunal did not make the asserted error. What it was doing, was assessing the likelihood of future harm. The Tribunal did this, first in [154] of its reasons, by making a finding as to what had happened in the past. The Tribunal at [155] then drew an inference from that, as to the level of interest that the applicant’s Church was, to those who might harm it and its followers. Next, it drew on that to conclude that there was no real chance of the harm threatened in 2013, actually occurring in the reasonably foreseeable future. The error in the ground is that it assumes, wrongly, that the task of the Tribunal is focused on the past. It is not. The past may be relevant to what might occur in the future, but it is not decisive of that. This ground is rejected.

Second ground:     The Tribunal failed to consider the applicant’s claims, had regard to an irrelevant consideration and/or misapplied the correct test

1. The particulars of this ground are:

   Particulars

   a.At [155] of its decision, the tribunal:

   i.Was willing to accept the applicant’s claim that a dispute which prevented the applicant’s church from building on a particular plot of land had a religious element, but

   ii.considered whether the applicant would be denied the right to practice his religion or whether that right would be denied or seriously restricted.

   b.In order to properly assess the applicant’s claims, the tribunal was instead required to consider whether the deprivation of land by reason of religion amounted to persecution.

   (Emphasis in original)

2. The applicant never claimed that either he, or the church, was deprived of land. The only claim was that the Church was prevented from building a church on particular land. The Tribunal dealt with that claim at [155].

3. In his written submissions[1], which were filed on the morning of the hearing, and his oral submissions, the solicitor for the applicant changed this ground to suggest that the error asserted in it, was that the Tribunal ought to have considered whether the deprivation of use of land for reasons of religion “amounted to (or may contribute to) a finding of persecution.” He argued that the Tribunal should have had regard to factors including the applicant’s position of leadership in his church; the 2013 threat to bomb the hotel in which the Church meeting was held; and country information indicating that the greatest impediment to religious freedom in Pakistan was attacks against religious ceremonies and places of worship.

   [1] The applicant sought and was granted leave to file written submissions in the form handed up at the hearing of this matter on 19 October 2017.

4. This argument goes outside the pleaded ground and having been raised for the first time at the hearing without leave even being sought, need not be considered. Even if it were, I would reject it. The Tribunal considered each of the matters referred to in the applicant’s submissions[2] not only individually but cumulatively: [163]. What the applicant is in effect trying to do, is to reformulate the claim made in support of his protection visa application and then argue that the Tribunal should have considered that reformulated claim. The ground is rejected.

Ground three:  The Tribunal misapplied the real chance test or failed to consider a relevant consideration when assessing one of the applicant’s claims

[2] See [109], [152], [153] of the Tribunal’s reasons.

1. Ground 3 of the application contains the following particulars:

   Particulars

   a.At [157] of its decision, the tribunal accepted one of the applicant’s claims, being that Christians sometimes faced blasphemy charges as a result of personal disputes, which the tribunal considered appeared to apply to members of the applicant’s church charged with blasphemy offences.

   b.At [161] of its decision, the tribunal:

   i.was unaware of any evidence which suggested that allegations of blasphemy or blasphemy charges were so frequent in that Christians generally faced a real chance of being accused of or charged with blasphemy, and

   ii.considered that there was no credible evidence which suggested a real chance that the applicant would be accused of or charged with blasphemy in the future.

   c.The tribunal wrongly required frequent allegations in order to establish a real chance of being accused of or charged with blasphemy.

   d.Alternatively, the tribunal failed to consider a relevant consideration, being:

   i.A copy of an email dated 30 September 2012 from [PS] to David which stated that threats were made against the church, the police had provided two armed police to guard the house and they had advised them not to hold meetings until things settled down (at [94] of the tribunal’s decision), or

   ii.The applicant’s evidence that the church had received a number of threats and had to move a number of times (at [94] of the tribunal’s decision), or

   iii.Country information that those accused of blasphemy “are often” targeted in communal violence, in “numerous cases” government policy failed to protect victims of religiously-motivated mob violence and that, although it was difficult to determine exactly how often allegations of blasphemy were made, the number of registered cases appeared to be “relatively small” (at [113] of the tribunal’s decision).

   (Emphasis in original)

2. There are two parts to this ground. The first appears from para.c of the particulars. This part of the ground is based upon the same erroneous understanding of the law, and the reasons of the Tribunal, as the first ground. It confuses a finding of fact with the application of a legal test. It is rejected for the same reason.

3. The second part of the ground is in para.d of the particulars. On its face, the ground asserts that the Tribunal failed to take into consideration two aspects of the evidence. The first, an email sent by the applicant in response to the Tribunal’s letter inviting the applicant to comment on various inconsistencies in his evidence, did not, contrary to the assertion in the ground, state that threats were made against the church; that is what the applicant said: [94] of the Tribunal’s reasons. The email referred to only one threat. The Tribunal accepted that there had been one threat: [154]. Given that the Tribunal expressly referred to the email (at [94]) and accepted the evidence in it (at [154]) the argument that the Tribunal failed to take into account aspects of the evidence must be rejected.

4. Similarly, the evidence concerning the frequency of accusations of blasphemy was not only set out in the Tribunal’s decision (at [113]) but clearly formed the basis of its consideration of the applicant’s claim to be susceptible to such accusations: [161]. In light of that, it cannot be said that the Tribunal failed to consider that information in this ground as it appears in the application. This ground must also be rejected.

5. In his submissions, the solicitor for the applicant extended the boundaries of this ground to argue, that there were three real errors in the Tribunal’s consideration of the possibility of the applicant being faced with accusations of blasphemy. First, that the Tribunal did not take into account all of the applicant’s personal circumstances such as his leadership role in the church. At the hearing, I asked the applicant’s solicitor on a number of occasions, to indicate what material there was before the Tribunal that showed that there might be a link between the applicant’s leadership role and the likelihood of being accused of blasphemy. He could not do so.

6. The second, further error was that the Tribunal only considered the situation of Christians in general rather than the applicant’s particular circumstances. Properly understood, this is no more than another way of stating the first further error.

7. This argument focused upon the first sentence in [161] of the Tribunal’s reasons where it stated:

   I have also considered the issue of blasphemy charges. I am unaware of any evidence which suggests that allegations of blasphemy or blasphemy charges are so frequent in Pakistan that Christians in general face a real chance of being accused of or charged with blasphemy. …

8. Clearly enough, this sentence does focus on the situation concerning Christians in general in Pakistan. It says so in plain terms. However, the next sentence reveals that the Tribunal did not limit itself to consideration of that matter:

   … Furthermore, there is no credible evidence before me which suggests that there is a real chance that the applicant will be accused of or charged with blasphemy in Pakistan in the reasonably foreseeable future.

9. Once again, the applicant took this sentence out of context and argued that there was no consideration shown in it of the particular circumstances of the applicant. However, the proper approach to understanding the Tribunal’s reasons, just as with any other written document, is to have regard to the whole of those reasons. Earlier in its reasons, the Tribunal had accepted certain elements of the applicant’s claims and had rejected others. For example, at [152], the Tribunal stated that it accepted that the applicant was a Christian who was a leading member of the Full of Grace Church and that he was employed as a financial director by the church. At [153] it referred to the applicant as a “leading member” of his church. The applicant’s argument proceeds on the basis that, several paragraphs later, the Tribunal has forgotten or overlooked all of the characteristics of the applicant which it expressly stated that it had accepted. I do not accept that submission. The reference to “the applicant” in [161] is to be understood to be a reference to the applicant with all of the characteristics accepted by the Tribunal.

1. The third further error is that the Tribunal overlooked the applicant’s evidence given at the first hearing that “many families” in his church had been accused of blasphemy.

2. The evidence relied on was given in the following passage:

   Member:Okay. Well that’s good isn’t it? Now have people have other people in your church in your big group of people from the Full of Grace church have any of them been facing serious problems in recent years because of their religion?

   Applicant:Yes it happened with many families.

   Member:So tell me the nature of some of these problems.

   Applicant:One of our team member who both husband and wife they were teachers and they got angry with some child in a school. And because of that the parent of the child they accused them of discrimination of being Christian and because of that they had a problem and they had escaped.

   Member:Tell me when you say a problem what were they going to be arrested, was somebody going to physically harm them what was the problem they faced?

   Applicant:They’ve been accused of being disrespect to the Prophet and that’s why they accused of blasphemy.

   Member:And when was this, roughly?

   Applicant:I think this was 2009/10.

   Member:Since that time has any other member of your church faced any problems related to religion?

   Applicant:Apart from them there are two families.

   Member:Tell me briefly about what happened to them. The two families you just told me about, what happened to them?

   Applicant:One family, the people from next door, because they used to pray at home, so they accused them, and one family, like they had some problem or fight because of that they were accused.

   Member:What were they accused of these families?

   Applicant:The same accusation of blasphemy.

   Member:What happened to these other two families?

   Applicant:They also fled from there.

3. On a proper understanding of the evidence given in this passage, the “many families” in the church said by the applicant to have suffered harm were, in fact, three families. The Tribunal accepted that evidence and its findings must be taken to have been made on the basis of that acceptance.

4. For those reasons, the Tribunal did not fall into any of the errors asserted in this ground and the ground is rejected.

Ground four:    The Tribunal failed to consider the applicant’s claims and/or misapplied the real chance test in respect of the risk of harm from sectarian violence if returned to Pakistan

1. The applicant relies on the following two particulars set out in this ground:

   Particulars

   a.At [159] of its decision, the tribunal:

   i.Accepted the applicant’s claim that he was attacked and injured during an outbreak of sectarian violence in 2002, but

   ii.rejected the applicant’s claim to fear persecution because he was not the target of the attack and did not experience continuing problems because of it.

   b.The tribunal was instead required to consider the totality of the circumstances around sectarian violence, including the motivation of the persecutor and the degree and repetition of harm.

   (Emphasis in original)

2. The applicant claimed that he had been caught up in sectarian violence in 2002 when he had gone to visit a friend. The Tribunal accepted that claim in the context of considering whether the applicant might be harmed in the future as a result of ongoing sectarian violence in Pakistan. The Tribunal found at [158], that there was no real chance that the applicant would suffer serious harm amounting to persecution as a result of sectarian violence against Christians. Its conclusion was arrived at after consideration of country information, to the effect that the risk of such violence was low and less likely to occur in the Punjab (the area of Pakistan from which the applicant came from) and was more frequent in rural areas and poorer communities. The Tribunal noted in this respect, that the applicant was a member of the middle-class and lived in the city. It also noted that neither the applicant, nor the church, had been a target of sectarian violence in the past.

3. In [159] the Tribunal noted that, in reaching its conclusion concerning sectarian violence, it had accepted the applicant’s claim that he was attacked and injured during an outbreak of sectarian violence in 2002. The Tribunal reasoned that as the applicant “was not the target of the attack and he did not experience continuing problems because of it”, the fact that he was injured in sectarian violence in 2002 did not alter its conclusion.

4. The reference to the applicant not being a target of the attack, understood in its context, must mean that the Tribunal accepted that the applicant was not the target of the incident of sectarian violence. Clearly enough, he was attacked and must have been the target of at least that attack. The real point made by the Tribunal here was that there is nothing about the applicant’s involvement in the sectarian violence in 2002 that elevated the risk of his being in involved in such violence in the future. It accepted that there was some risk but in the applicant’s particular circumstances, there was not a real risk.

5. There is no error in the way that the Tribunal approached the issue of sectarian violence. This ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         2 November 2017