CZC16 v Minister for Immigration

[2020] FCCA 2219

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZC16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2219

Catchwords:
MIGRATION – Application for judicial review – Administrative Appeals Tribunal – jurisdictional error – no matter of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), Part 8, s.36(2)

Cases cited:

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013]

FCA 774

Applicant: CZC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2202 of 2016

Judgment of: Judge Riethmuller

Hearing date: 4 August 2020

Date of Last Submission: 4 August 2020

Delivered at: Melbourne

Delivered on: 12 August 2020

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr McDermott

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG2202 of 2016

CZC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 16 September 2016 affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The Minister contends this matter is a ‘privative clause decision’ pursuant to Part VIII of the Migration Act 1958 (Cth) (‘the Act’) and that the application should be dismissed.

Background

1. The applicant is a citizen of Pakistan who arrived in Australia on 24 March 2012 on a student visa. He applied for a further student visa and was unsuccessful. The applicant then applied for a protection visa on 2 June 2014. He claimed fear of harm from un-identified persons arising from actions by his father.

2. The delegate for the Minister refused to grant the protection visa on 5 August 2015. The reasons provided included consideration of the fact that the father’s accident occurred in November 2010 (‘the Accident’) and the father was the pilot of the plane: see Court Book page 310. The delegate did not accept the applicant had ever been threatened, nor that he had a genuine fear of farm. The delegate further did not accept the reasons given for the delay in the application for the protection visa.

3. The applicant applied to the Tribunal for review the decision on 19 August 2015 and appeared at a hearing accompanied by an authorised representative. The Tribunal handed down an oral decision that day, upholding the delegate’s decision to refuse the application. A written statement of the decision was provided on 29 September 2016.

The applicant’s claim

1. The applicant’s claim is in relation to his father (summarised in the First Respondent’s submissions filed on 12 February 2019 at paragraph 2.2) is that:

   2.2    […] his father had been a pilot of a small commercial plane that crashed circa 2011, where all of the pilots and passengers died (the Accident). Several months after the Accident, individuals purporting to be the family of the deceased passengers telephoned the Applicant, blaming his father for the Accident, and demanding payment as compensation from him, and threatening his life. On one occasion, one unidentified individual came to his family home in Pakistan, enquiring where he was and asking his family to pass on his threat.5 The Applicant believed these un-identified individuals were from Karachi, Pakistan. He also claimed that the Police did not take his claims to have been threatened seriously, and that no First Information Report had ever been lodged with the Police.

Tribunal decision

1. The Tribunal’s accepted that the Accident had occurred, and that the applicant’s father was the pilot (at paragraph [8] of the decision). The Tribunal then went on to consider the consequences of the Accident for the applicant, saying (at paragraphs [10]-[14]):

   10. The Tribunal discussed the applicant's claims that he and his family were threatened in the manner as described, but does not accept that these threats were made. The Tribunal considers that the applicant and his family were residing on an air force base at the time the claimed threats were made. This information is consistent with the evidence as provided in the applicant's protection visa application; and, as put to the applicant pursuant to the provisions of s424AA of the Migration Act, the applicant's student visa application, which also provides evidence that the applicant was residing on the air force base at the time, until at least December 2011. This was contrary to the evidence of the applicant that he and his family were forced to move out of the air force residence following the death of his father.

   11. The Tribunal considers that the air force base would provide security for his family while residing on that base. The Tribunal does not accept that anyone could enter the base to come and make a threat to the applicant or his family, given the security in place at the air force base. The Tribunal considers that, had such a threat been made, which the Tribunal does not accept, the family would have been able to go to the air force security, and be provided with protection against such threats.

   12. The Tribunal does not accept that any particular threats occurred to the applicant in person or on the phone. The Tribunal does not accept that members of the passenger's families would seek compensation from the applicant's family so soon after the incident, and in circumstances when no blame had been apportioned to the applicant's father, at that time. The Tribunal further notes that the applicant continued to reside at that same location over that period of time, continued his going to school during this period, and undertook the documentary processes, including IEL TS tests, to apply for and receive a Student visa to come to Australia, commencing that process in December 2011, ultimately being provided with the Student visa in March 2012.

   13. The Tribunal also notes the applicant has not claimed that there have been any threats made to his family subsequently after the claimed threats of May 2011. The Tribunal notes the applicant came to Australia in March 2012 and did not seek a protection visa until June 2014, two years and three months after he arrived. The applicant pursued a Student visa with assistance from a migration agent, including going to the Federal Magistrates Court, as it was then known, and did not pursue a protection visa until that judicial process was withdrawn, and he had no further option to remain in Australia on a Student visa. The delay in departing Pakistan, and delay in lodging a protection visa in Australia, as discussed at the hearing, are of concern to the Tribunal.

   14. The Tribunal does not accept, on the evidence, that the applicant's family was threatened by family members of the passengers arising out of his father's piloting of a plane crashing. The Tribunal notes the legal tests with respect to real chance, and that for real risk, which is similar to that of the real chance test3• The Tribunal finds that the applicant did not face a real chance of serious harm arising out of the passenger's families' threats from the crashing of the plane at the time. The Tribunal further finds that there was no real risk of significant harm arising out of the threats from the family members of passengers at that time.

2. The Tribunal found that the pilot error (in response to an engine failure), was the cause of the crash that was identified by the Civil Aviation Authority in 2015: see paragraph [15] of the decision. However, the applicant had received no threats since those he claimed had occurred in May 2011: see [16] of the decision. As a result the Tribunal found (at paragraphs [15]-[20] of the decision):

   15. The Tribunal notes that it is now six years after this incident occurred. The Tribunal notes that in December 2015 the Pakistani Civil Aviation Authority handed down with a finding with respect to the cause of the crash. The Tribunal notes this country information relating to that, which provides a discussion of the applicant's father's action in that crash. It was stated that the accident was caused by the inability of the captain to handle the abnormal operation of engine number two just after take-off; there was a failure of the cockpit crew to raise that landing gear after experiencing an engine anomaly; and the execution of actions by the first officer before the loss of altitude contributed to the crash. The Tribunal considers that pilot error in response to aircraft engine failure has been described as a reason for this crash.

   16. The Tribunal has considered whether this new finding, made in December 2015, causes the applicant to have any concerns on to his return to Pakistan. The Tribunal notes that the applicant has not claimed to have received any threats made to him, arising out of the death of any passengers, since the claimed threats of May 2011. The applicant has also not received any threats since the report, and has not reported any threats being made to his family since the report was handed down in December 2015. This is significant as the blame that the applicant claims could be attributed to his father can now be made. It has not been.

   17. The Tribunal considers that, on return to Pakistan, the applicant would not be threatened by family members, either for harm or for monetary compensation, arising out of his father's responsibility for the crash. The Tribunal considers that the family members of the passengers who were killed have more relevant and identifiable legal options in seeking compensation, from either the airline company, who controlled the plane and were responsible for the pilot, or from ENI, the oil company who was employing the people and had charted the flight to travel on 5 November 2010. The Tribunal considers that compensation claims are eligible to be pursued against either of those two entities, and accordingly they would not seek compensation against the applicant's father's estate, or his family, arising out of that incident.

   18. The Tribunal notes the applicant's claim, which the Tribunal accepts, that his own family is seeking compensation from the pilot's airline company, and that legal proceedings are still continuing, pursued by the applicant's uncles.

   19. The Tribunal has considered whether, on return to Pakistan, the applicant will have a real chance of serious harm or a real risk of significant harm arising out of his father's activities and attributable pilot error, which were a partial cause of the crash. The Tribunal considers that, based on ns consideration of the evidence, and noting the finding that it does not accept that threats that have been made, the Tribunal finds that the applicant does not have a real chance of serious harm arising from his father's error in response to engine failure on return to Pakistan, now and in the reasonable foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

   20. Further, having considered all this information, the Tribunal finds that the applicant does not have a real risk of significant harm on return to Pakistan, for this reason.

Grounds of Judicial review

1. The applicant sets out three grounds of appeal in their Application filed on 11 October 2016.

Ground 1

1. The first ground for review is framed as follows:

   1. That the Member in the Administrative Appeals Tribunal (“the AA T”) erred in law and therefore fell into jurisdictional error in incorrectly applying the evidence to the operation of s.36(2)(aa) of the Migration Act 1958 ("the Act").

2. There is no jurisdictional error in the Tribunal relying upon its earlier findings of fact. As Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774:

   [56] There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.  Three was no other relevant fact that affected the considerations under the complimentary protection provisions.

3. In this case the Tribunal rejected the claim that the applicant was at risk if he returns to Pakistan. In these circumstances the applicant could not succeed under s.36(2)(aa) of the Act for the same reasons that he failed on his Convention ground under s.36(2)(a). He failed on the basis that there was simply not a real risk of serious harm, not on the basis that the reason for any risk was outside the convention ground reasons but arguably within the ambit of the complimentary protection provisions.

4. I therefore find that that the applicant does not succeed on this ground.

Grounds 2 and 3

1. The second and third grounds appear to be largely seeking a review on the merits of the case, rather than judicial review.  It is convenient to deal with them together. They are set out in the following terms:

   2.  That the Member erred in Law and therefore fell into jurisdictional error in not giving enough weight to the Applicant's evidence as to his risk of significant harm in Pakistan, insofar as;

   Particulars

   i) Summarily dismissing and discounting the evidence presented by the Applicant as a whole;

   ii) In not giving proper consideration to the fact the Applicant's father had indeed been assessed as being, at least in part, the cause of several deaths (“the Accident”);

   iii) In incorrectly concluding that the time since the Accident was at all capable of quelling the risk the Applicant holds;

   iv) In discounting and/or failing to properly assess the short period of time, since December2015, when the Applicant's father was found partly responsible for the Accident.

   3. That the Member erred in law in placing too much weight on the evidence that the Applicant sought a Student Visa in 2011, rather seeking protection under the Act after the Accident.

   Particulars

   i) The Applicant had always intended to travel to Australia to study irrespective of the Accident;

   ii) The Applicant's intentions to study are mutually exclusive from his safety in Pakistan;

   iii) The Applicant has not returned to Pakistan since leaving in March 2012.

2. The applicant made oral submissions effectively seeking merits review of the decision. It is nonetheless appropriate to consider each of the particulars of the grounds of review.

3. Particular 2(i) of the Application claims that the Tribunal summarily rejected evidence. A fair reading of the Tribunal’s reasons shows that the material was analysed by the Tribunal to assess the claim in the particular circumstances of the case. It was open to the Tribunal to reject the applicant’s evidence and there is nothing to suggest that the Tribunal did so in a manner that was procedurally unfair, nor without a rational basis.

4. With respect to Particular 2(ii), it is clear that the Tribunal had regard to the findings of the Aviation Authority, who concluded that the applicant’s father was partially at fault (at least to the extent that he was unable to recover from the situation that he confronted as a pilot with an engine failure). In this sense the Tribunal clearly understood the applicant’s claim that the applicant's father could be blamed for the Accident (see, Tribunal decision paragraphs [8] and [14] to [17)).

5. Particulars 2(iii) and (iv) challenge the Tribunal’s reliance upon the period of time that has passed without incident to the applicant. There is nothing illogical or inappropriate in relying upon a lengthy period of time passing without incident to conclude that there is little or no risk.

6. Under Ground 3, the applicant complains that the Tribunal gave undue weight to how long he had been in Australia on a student visa prior to making an application for a protection visa.  It was open to the Tribunal to place weight on the evidence that he had sought a student visa in 2011 rather than a protection visa, and only sought a protection visa over two years later. In the context of this case that reasoning was open to the Tribunal, particularly where the applicant had delayed leaving Pakistan after receiving his student visa and did not seek a protection visa until after he had lost his student visa. 

7. Whilst the Tribunal do not appear to have specifically referred to the applicant’s decision not to return to Pakistan since he arrived in Australia some year’s earlier, this is unremarkable in a protection visa case.  It would be remarkable if a person who sought a protection visa had returned to the country where they claim to be at risk; in most cases a return visit would be very damaging evidence as it would tend to show that a protection visa is not warranted.  I am not persuaded that the Tribunal needs to mention in their reasons that a protection visa applicant has not returned to their country of origin since they first departed following the risks arising that they rely upon. 

8. In the circumstances, I am not persuaded that he has made out grounds 2 or 3.

9. The applicant raised no other matters in oral argument.

Conclusion

1. As I have not found that the applicant has made out the grounds of judicial review, the application must therefore be dismissed.

2. At the hearing, I heard submissions on costs following the primary argument. The Minister has been entirely successful and costs should ordinarily follow the event. I am persuaded that the scale fee of $7,467.00 is reasonable in this matter. The applicant submitted that he had no money, and had recently lost his employment in Australia. This is not a basis for departing from the usual orders with respect to costs. I therefore order that the applicant pay the Minister’s costs fixed in the sum of $7,467.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 12 August 2020