CZB16 v Minister for Immigration

[2017] FCCA 2382

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2382

Catchwords:
MIGRATION – Application for judicial review – protection visa – findings not open to Tribunal on the material before it – application remitted to Tribunal.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212

SZSNU v Minister for Immigration & Anor (No.2) [2013] FCCA 1603
SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711

Applicant: CZB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2203 of 2016

Judgment of: Judge Riethmuller

Hearing date: 5 September 2017

Date of Last Submission: 5 September 2017

Delivered at: Melbourne

Delivered on: 5 September 2017

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 13 September 2016

2. A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to reconsider and re-determine the Applicant’s review application made on 21 October 2014 according to law.

3. The First Respondent pay the Applicant’s costs fixed in the amount of $8,084.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2203 of 2016

CZB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of the Minister’s delegate refusing to grant the applicant a protection visa. 

2. The applicant applied for his protection visa on 28 November 2013, and this was refused by the delegate in October 2014.  The refusal was the subject of a review decision by the Tribunal after having hearings in July 2016 and September 2016.  The Tribunal ultimately affirmed the decision of the delegate on 13 September 2016.

3. The case is somewhat unusual in the factual circumstances that appear in the materials.  The Tribunal accepted that the applicant was at real risk of significant harm from generalised and Taliban related violence in Pakistan in his home region.  The case then turned upon whether or not it was reasonable for him to relocate outside of his home region.  The Tribunal found that he could and importantly, that he was not of sufficient profile to be known to or targeted by the Taliban or other extremists if he were to relocate to another part of Pakistan and in particular, a large city region, which the country information indicated was generally much safer.

4. Ultimately, the Tribunal therefore affirmed the decision of the delegate and declined the grant the applicant a protection visa. 

5. One of the applicant’s core claims related to whether or not the Taliban had included him on a written list of people that the Taliban sought out to harm; what has loosely been described as a “hit list”.  This was dealt with at [27] of the decision, where the Tribunal said:

   27. At hearing the applicant claimed that his name was included in a list of people the Taliban wanted to harm, placed on the wall of a shot in a bazaar in his home area sometime at the end of 2012.  He said his brother told him his name was on the list and his father told him to leave the area.  The Tribunal notes the applicant did not mention that his name was on a Taliban list to the Department which casts doubts as to his claims in this regard.  At hearing the applicant said the delegate did not ask him and that he was very depressed at the time.  However given such a claim is directly relevant to his protection claims the Tribunal does not find this adequately explains the omission.  The Tribunal also found the applicant’s oral evidence at hearing about this matter to be vague and muddled.  For instance, he was unable to specify exactly when the list was put up, for how long, and how often.  The Tribunal also notes that the applicant’s family members stayed living in the same house in Koza Bandai, despite his claimed to be on a Taliban hit list.  For these reasons the Tribunal does not accept the applicant’s claims to have been on a Taliban hit list.

   [Emphasis added]

6. It is apparent that if it were accepted that the applicant was named on a written list, a different level of consideration of the possibility of harm to him by the Taliban must necessarily follow because it would demonstrate a profile well above the profile considered by the Tribunal in its decision.

7. In making the finding that it did, the Tribunal referred to a number of aspects of the evidence.  The first, being the failure of the applicant to mention the claim in initial interviews, which the applicant explained as being the result of him being depressed and not being specifically asked.  It is not surprising that the Tribunal may have found that this was not a particularly compelling explanation for the failure to mention the matter.  The Tribunal also took into account the Tribunal’s view that the applicant’s evidence at the hearing about the matter was vague and muddled and gave a number of specific examples. 

8. Counsel for the applicant undertook a careful review of the transcript of the hearing in order to demonstrate that the actual interactions on the transcript do not appear to bear out the statements made by the Tribunal in their decision.  The transcript shows that there was some discussion at the bottom at p.27 about the list and that it would be put up and stuck to a wall.  The applicant was asked about whether his name was on it and where it was placed and he explained that it was on the wall of a shop and that many people would see it.

9. At the bottom of p.27 of the transcript, the applicant was asked, “When was that list put up?” and he responded “The end of 2012.  End, end of 2012”.  The applicant was asked no more about the time of the list being placed on the wall.  The next question was simply, “Who told you your name was on the list?”  It seems it is difficult to be critical of the applicant, in terms of him being unable to specify exactly when the list was put up, in light of the fact that he was asked when, gave a general date (at the end of 2012), and was not asked to be any more specific, nor questioned further about that particular date.

10. Similarly, the applicant was asked, “So, if this list that your name was on, is it still up, still up in the bazar or something?” and the interpreter responded:

    He says no, that, that list, you know, that the army tore it off, you know, but they come again, you know, like they make like a, sometimes they make, you know, like a raid.  You know, they come there and he says these are all the lists of the people that they killed.  You know like committee members that, these are newspaper reports.  Like they raid, they raid the village and then they run away, like a hit and run, yeah”.

11. Again, the applicant does not appear to have been specifically asked about the timeframe involved, nor the frequency.  A fair reading of the transcript shows that the applicant provided an account of the list, but does not appear to have been pressed with respect to any of the details. 

12. In these circumstances, I am not persuaded that it was open to the Tribunal to reach the conclusions that it did, in its finding with respect to the nature of the evidence that he gave in this regard and therefore, the Tribunal’s findings in this respect are either without a proper evidentiary basis, are legally unreasonable or arguably irrational.

13. The Tribunal in [27], gives a further reason that it doubts the applicant’s version of events.  It was argued firmly before me by counsel for the Minister, that I should look at the reasons as a whole, and conclude that even if the Tribunal made an error of fact with respect to the “hit list” issues, the remainder of the evidence and findings were so strong that it would make no difference to the outcome.  I am not persuaded that in the context of this particular case and the issues at hand here that it is open to form such a view.

14. It is always a very difficult situation where a Tribunal member or even a judge of a trial court forms views based upon a number of evidentiary matters in order to draw an ultimate conclusion: How does one determine which parts are necessary ingredients to support the ultimate conclusion and whether the ultimate conclusion would be sustained if any one of the parts described were to be missing or wrong?  I also note that this is a central aspect of a very important decision in this case concerning a person who is potentially at significant risk of serious harm, where there was a finding accepting that the applicant was at real risk of serious harm in his home region.  I am not persuaded that the findings would necessarily be no different without this unsupported finding of the Tribunal.

15. In the circumstances, I therefore find that the applicant’s first ground with respect to this finding should succeed. 

16. Further argument ensued, namely, whether or not the applicant was able to relocate within his country of origin.  The Tribunal member found that he was able to relocate to a large city in Pakistan.  There is a detailed analysis of his circumstances and whether or not he could relocate.  Most importantly though, the question of his risk from the Taliban was discussed at [60], where the Tribunal said:

    60.  At the Tribunal hearings the Tribunal discussed with the applicant whether it would be safe and reasonable in all his particular circumstances to relocate to another part of Pakistan to avoid the harm he fears from the Taliban in Swat district.  The applicant told the Tribunal that the TTP is spread all over Pakistan and that he is on their target list.  He said nowhere is safe if they come after him.  In his statutory declaration provided to the Department he stated that he has previously opposed the Taliban and helped the army capture their members; that the Taliban have killed many members of committees formed in other cities of Pakistan; that the Taliban are active throughout the country and they kill their targets whenever they found them.  However the Tribunal considers that the applicant’s activities with the peace committee were limited and localised to his home area of Swat and Khyber Pakhtunkhwa and that the harm as a result he fears is localised to those areas.  Whilst the Tribunal accepts the applicant was a member of the peace committee, it does not accept that he was threatened or harmed or specifically targeted by the Taliban as a peace committee member, or that his family members have been threatened since he left Pakistan.  Nor does the Tribunal accept that he was on a Taliban hit list. The applicant said at hearing that once one becomes a target in a certain area, one will be pursued by the Taliban, and not spare any efforts, no matter which city in Pakistan.  The Tribunal does not accept on the evidence before it that the applicant’s profile is such that he would already be known by the Taliban or other extremist groups in other parts of Pakistan or targeted in other parts of Pakistan in relation to his limited involvement in the peace committee from around 2010 to September 2013.  On the information before it, the Tribunal does not accept that the Taliban or other extremists that may be inclined to target the applicant in Koza Bandai village or the Swat district more generally will pursue him to other parts of Pakistan, for example Islamabad, Rawalpindi, or Lahore on the basis of his own political opinions (actual and imputed) and peace committee activities.

    [Emphasis added]

17. Again, counsel for the Minister pressed arguments that in this case the findings with respect to whether or not he was on a Taliban hit list would not have changed the ultimate relocation finding and therefore, would not change the outcome of the case.  However, when one reads paragraph [60], it is clear that the relocation findings were based upon the conclusion that the applicant was not being specifically targeted by the Taliban, but rather suffered a more general risk from the Taliban. In light of this finding of only generalised risk, the Tribunal found that if the applicant were living in a large city in another part of the country his level of risk would not be such as to prevent him from reasonably relocating.

18. The Tribunal specifically rejected the proposition that the applicant was on a “hit list” for the purpose of considering its relocation findings.  What would have been the outcome if the applicant convinced the Tribunal that he was on a hit list, which remains open as a result of my findings above, is entirely unclear form the reasons.  The Tribunal would need to consider whether or not relocation was reasonable in this case if it was that he was on a hit list and therefore, of far greater interest to the Taliban than n the facts as found by the Tribunal for the purpose of the relocation findings.

19. In these circumstances, I am not persuaded that the outcome of the decision would inevitably be the same, as a result of the findings at paragraph [27]. I therefore find that this ground is also made out. On this basis, the decision of the Tribunal should be set aside and the matter remitted for rehearing according to law.

20. The applicant also argued that the process of considering relocation in this case was deficient in a number of respects. First, relating to whether or not the applicant’s accent may show that he was from another region and, even if that did not place him at risk, the extent to which he might suffer discrimination that may make it unreasonable for him to relocate.  Secondly, the impact upon the applicant’s capacity to function as a result of his fear of suicide bombers and generalised violence in circumstances where he had already lost a child as a result of such activities.  Thirdly, the impact of generalised violence, not only with respect to the applicant’s risk, but also with respect to whether or not it was reasonable for him in his circumstances to relocate. 

21. In order to deal with this ground, a long and detailed analysis of the process by which the Tribunal analysed the circumstances relating to relocation and the two limbs of the test, as described in MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 would be required. Importantly, I note that MZACX at [48], where Kenny J says:

    48. The fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, is remote does not answer the question whether it is reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk.  Further, the Tribunal did not directly address the appellant’s claim that he would face a risk of harm, particularly during attendance at Shia Muslim mosques or participation in religious festivals. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY [2014] FCA 1394 at [FN: MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 (18 December 2014) (Davies J)] to consider the practical realities for him.

22. It is not necessary for me to undertake the analysis in light of my findings with respect to ground one. There seems to me, to be little purpose in doing so, given that the Tribunal will need to consider the matter afresh in any event. 

23. In these circumstances, I therefore order that a writ of certiorari issue quashing the decision and that a writ of mandamus issue, requiring the Tribunal to consider the matter according to law. 

    [Further argument ensued]

24. The applicant seeks costs above scale in order to include the disbursement for the preparation of the transcript.  Counsel for the Minister argues that the scale fee encompasses all the ordinary preparation costs for judicial review, and that the transcript cost is included in this scale fee.

25. In SZSNU v Minister for Immigration & Anor (No.2) [2013] FCCA 1603, Judge Mansouridis referred to some comments by Judge Nicholls in SZRTP v Minister for Immigration & Anor (No.2) [2013] FCCA 711 to the effect that the Court is not bound by the schedule amount. It is a guide to what may generally be considered to be reasonable in the matters to which the schedule applies and the Court’s discretion may be exercised with reference to the actual circumstances presented in each case. The factors which are relevant to the exercise of the discretion include whether a party undertook more work than one would expect would usually be undertaken, and the complexity of the issues that were raised. I agree with their Honours’ analysis.

26. It seems to me that in these circumstances the transcript cost should reasonably be added to the scale fee as a reasonable addition to the costs involved in the matter given that ordinarily these matters proceed without a transcript of the Tribunal’s hearing.

27. I therefore order that the First Respondent pay the Applicant’s costs fixed in the sum of $8,084.00.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 27 September 2017