DAK16 v Minister for Immigration
[2018] FCCA 2021
•26 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2021 |
| Catchwords: MIGRATION – application for judicial review – whether there was procedural unfairness – whether there was a failure to review claims of the Applicant – whether there was a failure to afford natural justice – new claims not raised before the Tribunal – no error of law or procedure – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(1)(c), 476(2)(a) |
| Cases cited: DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 MZXHY v Minister for Immigration [2007] FCA 622 [8]. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 |
| Applicant: | DAK16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2242 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 July 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 26 July 2018 |
REPRESENTATION
| Applicant in person |
| Counsel for the First Respondent: | Mr Moloney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 14 October 2016 is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG2242/2017
| DAK16 |
Applicant
And
| MINISTER FOR IMMIGRATIO NAND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the court by way of an application filed on 14 October 2016. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 September 2016 to affirm a decision of a delegate of the First Respondent not to grant the Applicant a Protection (class XA) Visa (‘the Visa’).
Background
The relevant facts in the chronology of this matter have been accurately set out in material prepared on behalf of the First Respondent and are replicated exactly below with citations omitted:
3. The Applicant is a 28 year old male citizen of Pakistan. He first arrived in Australia on 23 September 2014 as the holder of a Student (Class TU) (Subclass 573) visa.
4. On 30 December 2014, the Applicant lodged an application for a Protection (Class XA) visa, and on 7 July 2015, the visa application was refused.
5. On 5 August 2015, the Applicant applied to the Tribunal for review of the visa refusal decision. On 8 September 2016, the Applicant appeared before the Tribunal to give evidence and present arguments assisted by an Urdu interpreter.
6. The Tribunal affirmed the delegate’s decision on 12 September 2016.
Otherwise the claims made by the Applicant and the consideration of them is set out at [5] below.
Grounds of review
The application for judicial review contained nine paragraphs. The affidavit filed 14 October 2016 set out a further 11 grounds. The characteristics of the grounds of review are summarised as follows:
·Complaints about the delegate’s decision: grounds 2, 3, 4 and 6;
·Complaints about factual findings made by the Tribunal: grounds 2, 3, 6, 7, 8, 11-14, 16;
·Complaints that the Tribunal failed to follow the proper procedure or accord procedural fairness: grounds 4, 5 and 8;
·Complaints that the Tribunal failed to consider all of the Applicant’s claims and evidence: grounds 6, 9, 10, 11, 13 15, 17; and
·Grounds raising new information not before the Tribunal: grounds 7, 18-19.
The Tribunal decision
The First Respondent accurately set out a summary of the Tribunal decision at [9] – [16] of their outline of submission (citations omitted):
9. The Tribunal accepted the Applicant’s claims to have been a member of the JKNSF and JKLF. It also accepted that the Applicant worked as a special assistant for a period of eight weeks in 2013-2014, although the Tribunal found that this constituted low-level administrative work passing out instructions to JKLF workers and supporters.
10. After conducting a detailed review of relevant country information, the Tribunal did not accept the Applicant’s claims that JKLF members or activists would be harmed by Pakistani authorities for the reason of their membership, without something more. Rather, the Tribunal was satisfied that JKLF members and activists are able to meet and debate their concerns openly in Pakistan.
11. The Tribunal considered the Applicant’s claims of past harm, and accepted that the Applicant was briefly detained and questioned in July 2013 in Rawalakot. Given the Applicant was able to return to Abbottabad (near Islamabad) and complete his studies, the Tribunal did not accept the Applicant was of any ongoing adverse interest to Pakistani authorities because of this incident.
12. Regarding his February 2014 detention, the Tribunal did not accept that because of his work for the JKLF, the Applicant would have been of sufficient interest to the Pakistani authorities such that he would be detained for 10 days, or at all. However, applying the “what if I am wrong?” question, the Tribunal accepted that the Applicant was detained for a limited period in which he was questioned and subjected to some mistreatment.
13. On the basis of its findings, the Tribunal accepted that the Applicant had a real chance of suffering harm for reason of his political opinion should he return to his home region of Rawalakot.
14. The Tribunal then considered whether the Applicant could safely and reasonably relocate within Pakistan. Given the Applicant was able to live unharmed after his release in February 2014 until his departure for Australia in September 2014, the Tribunal was satisfied that the Applicant was not of any ongoing adverse interest to the authorities because of his prior detention. The Tribunal was satisfied that the Applicant would not have a real chance of suffering any harm for reason of his two Rawalakot arrests should he relocate within Pakistan, even if he were to remain involved in the JKLF. Having considered the Applicant’s personal circumstances, the Tribunal was satisfied the Applicant could reasonably relocate.
15. Although not raised by the Applicant, the Tribunal considered whether the Applicant would be harmed on his return as a failed asylum seeker from a western country, but was not satisfied the Applicant has a real chance of suffering harm for this reason if he returned to Pakistan. The Tribunal separately considered whether Australia’s complementary protection obligations were engaged, but applying s 36(2B)(a), was not satisfied the Applicant has a real risk of suffering significant harm for any reason should he relocate within Pakistan.
16. For these reasons, having assessed the Applicant’s Refugee Convention and complementary protection claims individually and cumulatively, the Tribunal concluded that Australia’s protection obligations under s 36(2) of the Migration Act 1958 (the Act) were not engaged, and affirmed the decision under review.
Summary of First Respondent’s submissions regarding the grounds
The Applicant submitted 20 grounds of review which I have collated into five submissions at [4] above.
Relocation finding error
The First Respondent correctly pointed out at [38] – [43] of their submissions that the Tribunal made an error by applying the wrong legal test in regard to its relocation finding. Specifically, the Tribunal applied the internal relocation test to determine whether the Applicant was a refugee. This test requires the Tribunal to consider the reasonableness of requiring the Applicant to move to an area in their country of origin that is free from the chance of persecution.
The correct legal test is contained under s. 5J(1)(c) of the Act and does not involve a reasonableness requirement.[1] It requires that the real chance of persecution relates to all areas of the receiving country in order for a person to be classified as a refugee under the Act.
[1] DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308 [22].
While the Tribunal may have applied the wrong test, that error was in fact in the interests of the Applicant. This is because the test applied was more favourable to the Applicant than the correct test. It cannot be said that there was any material effect on the Applicant’s prospects of successfully obtaining a visa. There was an error, but it is an error which was not jurisdictional in nature; the same result would have been reached, regardless of whether the error occurred.
Consideration
In relation to grounds 2, 3 and 6, I find that this Court does not have jurisdiction to review any decision of a delegate of the Minister as this is a primary decision. Review of primary decisions by this court is prohibited under s. 476(2)(a) of the Act.
I find that grounds 2, 8, 7, 11, 12, 13 and 16 invite the court to engage in impermissible merits review. These grounds relate to factual findings of the Tribunal and it not a function of this Court to engage in fact-finding: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 [10].
In relation to grounds 3, 11, 13 and 14, I find that the Tribunal was entitled to rely on the independent country information it utilised in making its decision. The weight that it attributes to country information from any source is a matter for the Tribunal to determine: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 [11].
Grounds 4, 5 and 8 allege that the Tribunal failed to follow the decision making procedure required by the Act and Migration Regulations 1994 (Cth) and in accordance with natural justice. Having regard to the decision of the Tribunal, there is no evidence that the Tribunal failed to accord the Applicant procedural fairness or comply with natural justice requirements.
In relation to grounds 6, 9, 10, 11, 13 and 17, I find that the Tribunal considered all evidence and claims of the Applicant. The Tribunal’s record of decision is detailed and there is no indication that it did not consider all claims of the Applicant: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 [55].
Grounds 18 and 19 concerned material that was not raised before the Tribunal. New evidence supporting the claims of the Applicant will not be allowed before the Court unless it bears on a jurisdictional error: SZJMG v Minister for Immigration [2008] FCA 1145 [27]. The evidence put forth by the Applicant only appears to invite the Court to dispute a factual finding made by the Tribunal on the evidence before it. This is not sufficient to allow the new material: MZXHY v Minister for Immigration [2007] FCA 622 [8].
Conclusion
For the above reasons the Court dismisses the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 26 July 2018
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