CXG17 v Minister for Immigration Citizenship and Multicultural Affairs
[2023] FedCFamC2G 52
Federal Circuit and Family Court of Australia
(DIVISION 2)
CXG17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 52
File number(s): SYG 2063 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 2 February 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the Tribunal considered the entirety of the applicant’s claims or confined its consideration to fear of harm from the Taliban – whether applicant clearly made claim of harm based on his ideological views and increased threat because of Islamic State activity, should he return to Pakistan – whether Tribunal failed to consider Islamic State activity element of claims – jurisdictional error established – application for review allowed and matter remitted. Legislation: Migration Act 1958 (Cth) ss 36, 36(2)(aa), 476 Cases cited: AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 9 November 2022 Place: Hobart Solicitor for the Applicant: Mr Jones, solicitor Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Sparke Helmore ORDERS
SYG 2063 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CXG17
Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP AND MULICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
2 February 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2.A writ of certiorari issue quashing the decision of the second respondent dated 8 June 2017.
3.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 29 June 2017, the Applicant filed an application in the Court for review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 8 June 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Protection Visa on 9 April 2014, which was refused by a delegate of the First Respondent on 9 April 2015.
On 12 December 2016, the Tribunal invited the Applicant to appear before it to give evidence and present arguments. On 3 January 2017 the Applicant provided a medical report to the Tribunal prepared by a psychologist, dated 23 December 2016. On 4 January 2017, the representative for the Applicant provided the Tribunal with additional documents, including further medical reports relating to his condition of epilepsy.
On 5 January 2017, the Tribunal conducted a hearing, at which the Applicant gave evidence and was represented. The Applicant’s representative provided written submissions and further country information during the hearing.
On 8 June 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visa.
The application for judicial review of the Tribunal’s decision came before me on 9 November 2022 for hearing. At the hearing, the Applicant was represented by Mr Jones, solicitor. The First Respondent was represented by counsel.
BASIS OF TRIBUNAL DECISION
The Tribunal concluded that it was not satisfied that the Applicant met the requirements of s 36 of the Act to be eligible for a Protection Visa either as a refugee or on the basis of complementary protection.
The Tribunal did not accept that the Applicant faced a real chance of being killed or otherwise persecuted because of either:
·his real or imputed political opinion in support of the Awami National Party (“ANP”) and in opposition to the Taliban; or
·his imputed lack of religious belief as a “kafir” or unbeliever;
if he returns to Pakistan.[1]
[1] Particularly in the Tribunal’s reasons at [73] to [76] and [78] to [79].
Further, the Tribunal did not accept that the Applicant would be at risk of harm because he suffered from epilepsy, that he would be refused medical treatment in Pakistan, or that he would be discriminated against in relation to the provision of medical treatment. The Tribunal was not satisfied on the evidence that the Applicant’s health problems brought him within the definition of a refugee.[2]
[2] Tribunal’s reasons at [77].
In the Tribunal’s reasons at [80] to [85], the Applicant’s claim for complementary protection pursuant to s 36(2)(aa) of the Act and on the same or similar factual premise as claims referred to at [8] and [9] of these reasons, were considered and rejected.
COURT REVIEW
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
GROUNDS OF REVIEW
The amended application for review filed 18 June 2019 raises two grounds for review, being that:
1.The Tribunal erred by failing to consider the entirety of the claim made by or on behalf of the Applicant.
Particulars
The Applicant’s representatives made a claim to the Minister’s delegate concerning recent IS (Islamic State) activity in Pakistan. The Tribunal gave no consideration to this claim in its review of the delegate’s decision.
The Applicant claimed to fear harm on return to Pakistan as a perceived unbeliever (“kafir”). The Tribunal considered this claim on refugee grounds but not on complementary protection grounds.
2. The Tribunal misunderstood an essential element of the Applicant’s claims.
Particulars
The Applicant claimed that his epilepsy would be considered to be a sign of being possessed by the devil. The Tribunal’s view that “this appears to confuse epilepsy with some form of mental illness” amounted to a failure to appreciate that the Applicant was claiming that epilepsy itself, not some undefined mental illness, would be considered demonic.
[original emphasis]
Applicant’S CASE
For the purpose of the review hearing, the Applicant relied on:
·His Amended Application filed 14 June 2017;
·An affidavit of Winnie David, a Transcriptionist, affirmed 17 August 2017 and filed 14 June 2019, annexing the transcript of the hearing before the Tribunal on 5 January 2017;[3]
·A written Outline of Submissions filed 3 October 2022; and
·Various parts of the Court Book filed by the First Respondent on 26 October 2017. [4]
[3] Exhibit A-1.
[4] Exhibit R-1.
In oral submissions and in the written outline of submissions, the Applicant contended that the Tribunal either did not consider or misunderstood three essential elements of the claims for protection that had been made. They were that:
(a)Recent Islamic State activity was “an additional factor to be considered in the threat assessment to those perceived to hold differing political and ideological views”;[5]
(b)The Applicant would face harm in Pakistan as a perceived unbeliever or “kafir”,[6] which claim was considered under s 36(2)(a) of the Act but not under s 36(2)(aa) of the Act; and
(c)The Applicant’s epilepsy would be considered to be a sign of demonic possession.[7]
[5] Court Book at page 111.
[6] Transcript of the Tribunal hearing on 5 January 2017 at page 17 line 50, page 18 line 7, page 19 line 42, page 20 line 22, and page 23 lines 48 to 50.
[7] Court Book at pages 189 and 195.
Concerning Ground 1 and the purported failures to consider the entirety of the Applicant’s claims, the Applicant’s solicitor submitted that the Tribunal only considered the threat posed by the Taliban and not that the Applicant’s political and ideological views could also put the Applicant at risk of harm from Islamic State.
The Applicant’s solicitor submitted that the claim based on being perceived as an unbeliever or “kafir” was considered and rejected as a basis for protection as a refugee, but was not considered in terms of whether it met the statutory requirements for complementary protection.
In seeking to demonstrate the failure to consider as submitted at [15] and [16] of these reasons, the Applicant refers to the Tribunal’s reasons at [73].
Regarding Ground 2, the Applicant submitted that the Tribunal too narrowly considered the Applicant’s epilepsy and whether as claimed it provided a basis for entitlement to protection. That is, the Tribunal did not grapple with the aspect of this claim that relied on people in Pakistan regarding the Applicant as demonic and thereby expose him to risk of harm. I inferred this to be referred to either physical or emotional harm.
In respect of both grounds, the Applicant argues that the claims had been clearly made before the Tribunal. Reliance was placed on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”), and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (“AWT15”) for the relevant principles of law, which stand for a failure to consider constituting jurisdictional error.
Finally, the Applicant’s solicitor submitted that different conclusions about the protection obligations to the Applicant may have been reached if all aspects of his claims had been considered, and so jurisdictional error is established because the failures were material.[8]
[8] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
FIRST RESPONDENT’S CASE
In summary, the First Respondent answered the grounds of review as follows:
(a)The Applicant did not make a claim for protection on the basis of risk of harm from Islamic State. The basis upon which the submission concerning Islamic State was made was in the context of broader instability in the region and not that the Applicant personally would be at risk of harm;[9]
(b)A claim based on risk of harm from Islamic State did not clearly and squarely emerge from the evidence or submissions made to the Tribunal;[10]
(c)Concerning the claim based on the Applicant being perceived as an unbeliever or “kafir”, the claim was considered and rejected by the Tribunal and no error is demonstrated;[11] and
(d)The Tribunal did not misunderstand the claim concerning epilepsy and did consider it as required, despite curiously referring to the Applicant confusing epilepsy with some form of mental illness.[12]
EVALUATION
[9] First Respondent’s written submissions filed 25 October 2022 at [10].
[10] First Respondent’s written submissions filed 25 October 2022 at [11] and [12].
[11] First Respondent’s written submissions filed 25 October 2022 at [13] to [15].
[12] First Respondent’s written submissions filed 25 October 2022 at [17] and [18].
Ground 1
The claim concerning Islamic State activity in Pakistan, which the Applicant says was not considered, appears in the Applicant’s undated written submission to the First Respondent.[13] The submission was clearly before the Tribunal and there did not appear to be contention as to that fact. The Applicant submitted:[14]
The report further continues that recent [Islamic State] activity is an additional factor to be considered in the threat assessment to those perceived to hold differing political and ideological views.
Incipient evidence of the entry of the even more radical lslamist State (IS) ideology and networks in the region can only constitute an even greater danger for Pakistan. Indeed, the Government of the neighbouring province, Balochistan, in a ‘secret information report’ dated October 31, 2014, conveyed to the Federal Government and law enforcement agencies a warning of increased footprints of IS. The report disclosed that IS had claimed to have recruited 10,000 to 12,000 followers from the Hangu District of [Khyber Pakhtunkhwa] and Kurram Agency of the Federally Administered Tribal Areas (FATA). According to a September 23, 2014, report, moreover, terrorists supporting IS distributed hundreds of pamphlets in Afghan refugee camps and madrassas (seminaries) in Peshawar and other regions of [Khyber Pakhtunkhwa]. The pamphlets read, "Every Muslim must follow the orders of Caliph and should contribute in whichever capacity he or she can to assist the Islamic State against Taghoot [original emphasis] (those who transgress limits of lslam).
[original emphasis]
[13] Court Book at pages 107 to 114.
[14] Court Book at page 111.
It is self-evident from the paragraphs preceding this in the submission that the report being referred to is a 2015 report published by “SATP”. It appeared to be uncontentious at the hearing before the Court that the reference to “SATP” was to the South Asia Terrorism Portal.
The First Respondent says the part of the submission relied upon needs to be read in context and was part of a broader submission about the security situation in Pakistan, and in particular the Khyber Pakhtunkhwa province from where the Applicant came[15] and the level of threat in that area.[16] Further, it is argued that the Applicant never made a claim that he himself feared harm from Islamic State.[17]
[15] Court Book at page 14; Tribunal’s reasons at [1].
[16] First Respondent’s written submissions filed 25 October 2022 at [9].
[17] First Respondent’s written submissions filed 25 October 2022 at [10].
I consider that the First Respondent’s submission incorrectly and unreasonably seeks to limit the full context and import of the Applicant’s submissions and related claims for protection to one based on threat of harm from the Taliban.
The claim in paragraph 2 of the Applicant’s submissions[18] is specific to the Taliban. However, at paragraph 3 and further into the submission an additional claim is in my view clearly advanced.
[18] Court Book at page 107.
Paragraph 3 of the submission states:[19]
[The Applicant] further claims there is a real risk he will suffer significant harm in the form of arbitrary deprivation of life if he is returned to Pakistan.
[emphasis added]
[19] Court Book at page 107.
Further, paragraph 9 of the submission states:[20]
[20] Court Book at page CB 108.
General security situation in Pakistan
We submit that [the Applicant’s] risk of harm also needs to be assessed against the background of the general security situation in Pakistan at present, as well as in the recent past…
[original emphasis]
Reading the submissions referred to at [22], [27], and [28] of these reasons collectively and in overall context, I consider a clear claim is made:
·based on the cumulative threat of harm because of the general security situation in Pakistan, including recent activity by Islamic State; and
·the effect of that on the risk of harm the Applicant faces if returned to Pakistan because of his political and ideological views.
Furthermore, the Tribunal noted in its own reasons for decision that the Applicant’s representative had submitted that:[21]
…country information demonstrated that the Taliban and its affiliated Sunni extremist parties singled out ANP workers and anyone who seemed to be challenging their ideologies.
[emphasis added]
[21] Tribunal’s reasons at [62].
The Tribunal appears to have accepted that the Applicant held particular political and ideological views[22] and considered them in the context of threat from the Taliban, but not more widely or additionally based on the information and submissions concerning increased threats because of Islamic State’s activity in the region from where he came and from the views he holds.
[22] Tribunal’s reasons at [70], [71] and [73].
The Tribunal failed to consider a clear claim and this failure is recognised to constitute jurisdictional error as explained in the authorities relied on by the Applicant. For present purposes it is sufficient to refer to the statements of the court in NABE at [63]:
63.It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. [emphasis added] Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’ [original emphasis]
Ground 1 succeeds as the failure to consider both particularised aspects of the claims for protection referred to in Ground 1 can readily be accepted to be material. Proper consideration of the evidence about the claims may have resulted in a reasonable decision maker deciding differently.
The legal principles concerning materiality are well settled and do not need to be repeated.[23]
[23] NABE; AWT15;.MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
Ground 2
Concerning Ground 2 of the application for review, I agree with the First Respondent that there is limited evidence about the claim for protection based on how the Applicant would be regarded by his community because of his epilepsy.
There was ample evidence that the Applicant suffered epilepsy and required treatment, and this was extensively referenced by the Tribunal in its written reasons.[24] The Tribunal has addressed the claim based on epilepsy in the context of what treatment would be available in Pakistan and whether the Applicant would be discriminated against.
[24] Tribunal’s reasons at [23], [51], [52]. [77], [79], [82], [83] and [85].
However, I agree that the Tribunal does not appear to have appreciated, as the Applicant submits, that the claim was also on the basis that he feared being at risk of harm due to his community treating his epilepsy as a sign of demonic possession.
There is possibly a semblance of a claim for protection based on the community’s attitude towards the Applicant as demonic because of his epilepsy. However, there is no substance to the claim and it in my view is tantamount to a mere assertion. There was no probative evidence to support the claim put before the Tribunal; I agree with the First Respondent that the psychologist’s report[25] merely recorded the Applicant’s claim that he would be regarded as being demonically possessed and harmed in some fashion as a result.
[25] Court Book at pages 185 to 195, in particular page 189.
To the extent that the Tribunal appears to have misunderstood or not considered the demonic aspect of the claim based on the Applicant suffering epilepsy, I am not satisfied that the claim was clearly made as required,[26] and even if made clearly there was no probative evidence in support of the claim capable of meeting the requirements for protection under s 36 of the Act.
[26] NABE; NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21].
To the extent that there may have been a failure to consider as alleged by the Applicant, it was not material error capable of substantiating jurisdictional error. As such, Ground 2 fails.
Conclusion
As Ground 1 has succeeded, the matter should be remitted to the Tribunal for redetermination by another member and the relief sought is granted.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 2 February 2022
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