CXN16 v Minister for Immigration

[2018] FCCA 2467

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2467

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) Visa – whether the Tribunal failed to give genuine consideration to evidence – whether the Tribunal failed to deal with an aspect of Applicant’s claim – Tribunal gave consideration to all claims and evidence – weight of country information matter for the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

AEX 15 the Minister for Immigration and Border Protection [2017] FCA 821

BOR15 v Minister for Immigration & Anor [2017] FCCA 152

Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: CXN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2172 of 2016

Judgment of: Judge McNab

Hearing date: 26 April 2018

Date of Last Submission: 26 April 2018

Delivered at: Melbourne

Delivered on: 7 September 2018

REPRESENTATION

Counsel for the Applicant: Mr. J. Williams

Counsel for the Respondents: Mr. A. Yuile

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed 9 October 2017 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2172 of 2016

CXN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application comes before the Court by way of an amended application filed 9 October 2017 (original application filed 6 October 2016) seeking judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’). This decision affirmed a decision by a delegate of the First Respondent to refuse the grant of a Protection

   
   

   (Class XA) Visa (‘Visa’).

Background

1. The background circumstances of this matter have been accurately summarised in the submissions of the First Respondent. Paragraphs

   
   

   [3] – [5] of the First Respondent’s submissions are replicated exactly below (citations omitted):

2. The Applicant is a Pakistani national who was born and raised in the Kurram Agency area in the Federally Administered Tribal Areas (FATA) in Pakistan. He grew up in a small town a short distance from Parachinar city.

3. The Applicant arrived in Australia by boat to Christmas Island.

4. The Applicant applied for protection on 16 January 2013.

5. The Applicant claimed to fear harm in Pakistan as a Shia Muslim of the Turi Tribe, who came from the Kurram Agency area. He claimed to have been the subject of threats, harassment and beatings. He claimed to fear the Taliban and Daesh as well as other militant groups in his home area. He also claimed to be suffering from mental health problems (post-traumatic stress disorder and depression), which would exacerbate the effects on him of returning to Pakistan and would require him to travel to get access to mental health services, which would be risky.

Decision of the Tribunal

1. The Tribunal found that the Applicant did not meet the refugee criteria.

2. The Tribunal accepted that the Parachinar area where the Applicant grew up had a poor security situation from 2007 and that the road to Peshawar was often closed. The Kurram Agency area was subject to sustained conflict from 2007, and the road into Parachinar was effectively shut off between 2008 and 2011.

3. The Tribunal accepted most of the Applicant’s account of his study period in Peshawar, including the harassment and threats that he claimed to have received in that time. It also accepted the Applicant’s accounts of being stopped by the Taliban and his friends being killed by the Taliban.

4. The Tribunal did not accept that returnees from the West, or Pakistani citizens who had sought asylum overseas, would be subject to harm, especially where they had departed lawfully (as the Applicant had).

5. While it accepted that there had been risk to Turi Shias in the past, the Tribunal considered that the level of generalised and sectarian violence in Pakistan, including in the FATA and in Karachi, had substantially reduced. DFAT assessed that there was a “low risk of sectarian violence for most Shias in Pakistan” and a moderate risk for high profile Shias. In that respect, the Tribunal found that the Applicant was not a high-profile Shia.

6. The Tribunal considered significant amounts of country information about the current security situation in Pakistan and the Kurram Agency area. While accepting that there had been general risks to Shias and Turi from militant groups including the Taliban, the Tribunal found that:

   a)the security situation had improved considerably since 2014, including in the Kurram Agency;

   b)Kurram Agency remained “comparatively quiet”, with a decline in military violence;

   c)the overall situation in Pakistan had improved, as had the situation in the Kurram Agency;

   d)the risk of sectarian violence in the FATA had gone from moderate to low, and

   e)the risk of generalised violence in Kurram Agency was low.

7. The Tribunal found that the weight of country information did not support the Applicant’s claims. The Kurram Agency was no longer cut off from the rest of Pakistan.

8. The Tribunal further found that while there was some evidence to support claims that Daesh was active in the Parachinar area, the security situation had improved significantly and the Applicant did not face a real risk of harm if returned to the area, including because of Daesh. There would be some risk of generalised violence, but having regard to all the evidence, including in relation to the Applicant’s profile, the Tribunal did not accept that there was a real risk of serious harm to the Applicant he returned to the FATA.

9. The Tribunal also considered the Applicant’s mental health, but found that there would be mental health services available to him in his home area. If he needed more significant treatment, it would be possible for the Applicant to travel to get that treatment, for example to Peshawar or Islamabad. This followed in part from the Tribunal’s findings, based on the country information, that the road to and from Parachinar was now open and secure. The Tribunal considered possible risks of harm if the Applicant travelled to Islamabad or Peshawar, and found that he would not face a real chance of serious harm on that travel.

10. On the basis of all of the above, the Tribunal did not accept that the Applicant faced a real risk of serious harm if returned to Pakistan.

11. In addition, based on the same findings, the Tribunal did not accept that the complementary protection provisions applied to the Applicant.

Grounds of review

1. The grounds of review set out in the amended application are as follows:

   a)there was an insufficient logical or evidentiary basis for the Tribunal to find the Applicant did not face a real risk of harm from Tehrik-e-Taliban Pakistan (TTP), Daesh, and/or another extremist Sunni group in Parachiner, Pakistan;

   b)the Tribunal failed to deal with whether the Applicant faced a real risk of harm from the Taliban when travelling to Rawalpindi or Islamabad for medical treatment as an ethnic Turi from a family that owns large parcels of land in Pakistan; and

   c)the Tribunal failed to examine the risk of harm to the Applicant from seeking mental health services in Peshawar, Islamabad or Rawalpindi in Pakistan.

2. These grounds were particularised in great detail and length and are not replicated here. The particulars were in the nature of submissions with passages of the Tribunal decision extracted The Court has sought to address the substance of the matters raised by the Applicant.

Ground one

1. As noted by the submissions of the First Respondent, the ground purports to contend that there was an insufficient logical or evidentiary basis for the Tribunal to find the Applicant did not face harm in Pakistan. Much of the content of the particulars and submissions refers to a failure to give genuine consideration to the claims of the Applicant and country information. The Applicant’s Outline of Submissions states at page 2 that:

   …the Tribunal failed to give the post hearing submissions dated 1 and 19 April 2016 at page 26 and 273 of the Court Book and the country information at [78] of the decision record proper, genuine or realistic consideration vis-à-vis the Applicant’s protection claims.

2. The Applicant seeks to rely on BOR15 v Minister for Immigration & Anor [2017] FCCA 152 (‘BOR15’), making an analogy to the facts in this case. While the facts in both matters have some similarities, this case is distinguishable. In BOR15 the Tribunal accepted evidence from an expert witness to the effect that if certain conditions were met, then a real threat to the applicant in that case could ‘mature’. The Tribunal was provided, but did not appear to consider, later evidence that indicated that those conditions were met and had therefore matured and found that the applicant would not face a risk of harm if returned to Pakistan. Judge Jones found that by apparently not considering the later evidence, the Tribunal had failed to give genuine consideration to the claims of the applicant and had constructively failed to exercise its jurisdiction.[1] In this case, however, there was no expert evidence and the particular circumstances that presented to the Tribunal in that case do not pertain in the present case. There was no failure on the part of the Tribunal to consider country information. Indeed, it appears that the Tribunal has actively engaged with the Applicant’s submissions and considered in a detailed way the country information submitted by him.

   [1] BOR15 v Minister for Immigration & Anor [2017] FCCA 152 [39] – [46].

3. The Applicant also referred to Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. In that case the court considered that a failure on the part of the Tribunal to have regard to a university transcript submitted by the Applicant amounted to a failure to consider the claims of the Applicant. In the present case has been no failure on the part of the Tribunal to consider material placed before it.

4. The Applicant also relied upon Minister for Immigration and Citizenship v MZYTS (2013) 230 FCR 431, which case concerned a failure by the Tribunal to consider the most recent country information relevant to an Applicant. The Tribunal there relied upon older country information which was quite different to the recent country information. In the present case there was no failure on the part of the Tribunal take into account and evaluate all the country information put before it by the Visa Applicant including the most recent country information available to the Tribunal.

5. I accept the submission of the first respondent that it is well-settled that “the choice in the assessment of the accuracy and weight of country information is a matter for the Tribunal”[2].

   [2] AEX 15 the Minister for Immigration and Border Protection [2017] FCA 821 [30], NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 [11].

Ground 2

1. The Applicant submits that the Tribunal failed to deal with the Applicant’s claims that if he travelled to Rawalpindi or Islamabad for medical treatment, there was a real risk that he may be kidnapped and murdered by the Taliban because the Taliban perceive that members of the Turi tribe are wealthy and given that the Applicant’s family are landholders in apparent in Parachinar, Pakistan.

2. In fact, the Tribunal dealt specifically with these claims at [88] – [90] of its decision. The Tribunal identified the Applicant’s fear of harm, referred to the country information including country information submitted by the Applicant and made specific reference to the fact country information in relation to Turi tribe members. At [91] the Tribunal found that the Applicant does not face a real chance of serious harm if he was to return to his home area in Kurram Agency and that the Applicant could access relevant health services including mental health services in the centres such as Peshawar or Islamabad should he need to without facing a real chance of serious harm.

Ground 3

1. This ground asserts that the Tribunal failed to examine the risk of harm to the Applicant from travelling to seeking mental health services in Peshawar, Islamabad or Rawalpindi, Pakistan.

2. At [87] – [88] the Tribunal held that the Applicant would be able to get the mental health treatment he might need in his home state. The Tribunal made a secondary finding, that if he might need to go to a bigger centre to get more serious treatment, that the security situation on the road to these larger centres and in the larger centres where treatment might be given, was stable. The Tribunal stated at [88]:

   The Tribunal accepts the representatives assertion that the Applicant may be required to travel to a major city such as Peshawar or Islamabad to access psychological services should he continue to require these on return to Pakistan, but given defects assessment regarding the low risk of harm to most years in Pakistan generally (who are not high-profile professionals), and advice the defect understands the Thal –Parachinar Road remains open and there have been no major security incidents on the road in 2015, finds that the Applicant would not face a real risk of serious harm as a consequence of travelling from parish in our to a location such as pressure war or Islamabad for medical treatment, or for other purposes, now or in the reasonably foreseeable future.

3. The Tribunal found that the Applicant would not be at risk of harm in his home area of Kurram Agency and would not have to relocate within Pakistan either for reasons of safety or for the purposes of obtaining health treatment.

4. The Tribunal has considered the Applicant’s claims in relation to accessing health services and there is no jurisdictional error arising from the approach taken by the Tribunal.

Conclusion

1. For these reasons the court dismisses the application and makes orders that the Applicant pay the First Respondent’s costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  7 September 2018