DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 331
•8 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 331
File number(s): SYG 2202 of 2017 Judgment of: JUDGE EGAN Date of judgment: 8 December 2021 Catchwords: MIGRATION – Applications for protection visas – whether the applicants had any well-founded fear of persecution – the Tribunal appropriately engaged with the applicants’ claims made before it – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a) and (aa) Cases cited: Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
CED15 v Minister for Immigration and Border Protection [2018] FCA 451Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Solicitor for the Applicants: Mr S. Hodges of Hodges Legal Solicitor for the First Respondent: Australian Government Solicitor Counsel for the First Respondent: Ms K. Hooper of Counsel Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2202 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DDK17
First Applicant
DDL17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
8 DECEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 13 July 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,853.00.
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 EGAN:
Introduction
The first applicant (the husband) and the second applicant (wife) are married citizens of Pakistan who arrived in Australia on Visitor visas in March 2014.
On 8 October 2015, the applicants applied for Protection visas on the basis of claims that they feared harm due to the first applicant’s conversion from the Sunni faith to the Shia Islam faith.
On 15 April 2016, a delegate of the Minister refused to grant the applicants’ applications for Protection visas, not accepting that the first applicant had converted to Shia Islam, or that the applicants’ sons’ alleged kidnappings were related to the first applicant’s association with the Shia community.
On 21 April 2016, the applicants lodged an application for review by the Administrative Appeals Tribunal (‘the Tribunal’) of the decision of the delegate.
On 29 June 2017, the Tribunal affirmed the decision of the delegate on the basis that it was not satisfied that the applicants had a well-founded fear of persecution should they be returned to Pakistan.
The applicants filed an Originating Application for Review on 13 July 2017.
Consideration of Claims by the Tribunal
At [3] and [4] of its reasons, the Tribunal outlined the relevant criteria that needed to be met for a Protection visa to be granted under the provisions of s. 36 of the Migration Act 1958 (Cth) (‘the Act’).
At [5] and [6] of its reasons, the Tribunal respectively recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
At [7] of its reasons, the Tribunal set out the relevant considerations required to be taken into account when assessing Australia’s protection obligations pursuant to the provisions of s. 36(2)(a) of the Act, and the relevant considerations when assessing Australia’s complimentary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act.
At [8] of its reasons, the Tribunal relevantly noted that it was required to take into account policy guidelines as set out in Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act.
At [9] – [16] of its reasons, the Tribunal set out the claims made by the applicants. The applicants’ claims were summarised at [4] of the applicants’ submissions filed on 10 November 2021, and were as follows:
“[4] The applicants' claims were made principally under the name of the first applicant and including the second applicant as a member of the family group. The fears expressed by the first applicant include the following:
[4.1] That he would be seriously harmed or killed by the Taliban because they were Shia Muslim;
[4.2] Their son's best friend (SZ) was a Shia Muslim and killed in 2011 by the Taliban;
[4.3] SZ was a frequent visitor to the applicants' home and they participated in Shia Muslim activities together;
[4.4] SZ persuaded the applicants to convert to Shia Muslim.
[4.5] The Taliban started targeting their family, and
[4.6] Their eldest son was kidnapped by the Taliban and held for ransom, and
[4.7] Their youngest son has been kidnapped and his whereabouts are unknown.
[4.8] The applicant feared harm on the basis that he was a wealthy Pakistani male.”
Grounds of Review
The applicants only rely upon Ground 3 of the Originating Application for Review, which relevantly was as follows:
“3. The AAT committed jurisdictional error by failing to properly consider an integer of the applicant’s claim.
PARTICULARS
a. At [12], the applicant claimed that his eldest son's best friend was a Shia Muslim man named [name omitted]. It was claimed that [name omitted] performed an active role in keeping peace and collecting funds for the orphans as a part of an organisation that the Taliban was opposed to.
i. The applicant also claimed that [name omitted] was killed by the Taliban due to his continuing involvement with the organisation.
b. At [13], the applicant claimed that his eldest son, [name omitted], had been kidnapped by the Taliban and held for ransom. The applicant claimed that his son's kidnappers demanded that the applicant stop working against the Taliban and that he hand over 1,000,000 rupees for his son's release.
c. At [66J, the AAT accepted that the applicant's eldest son was kidnapped but considered that the kidnapping did not occur on the basis of the applicant's conversion to Shia Islam but for monetary purposes.
d. At [65], the AAT accepted that the applicant's eldest son was 'friendly' with [name omitted] and that [name omitted] had been killed.
e. The AAT failed to acknowledge that, given [name omitted’s] close relationship with [name omitted], the same group that killed [name omitted] may have been kidnapped and threatened to kill [name omitted].”
(names of persons omitted)
Ground 3 was a claim that the Tribunal committed jurisdictional error by failing to properly consider the claim raised on behalf of the applicants that the friendship between the first applicant’s son and another person, who was claimed to have been killed by the Taliban, could result in the applicants being persecuted. It was asserted that the Taliban had demanded “that the applicant stop working against the Taliban and that he hand over 1,000,000.00 rupees for his sons release” – it had been claimed that the Taliban had kidnapped the first applicant’s son.
The Ground of Review relied upon does not relevantly assert that the first applicant’s son was kidnapped by reason of his friendship with the person who was said to have been killed by the Taliban. Such claim was not pressed before the Tribunal. Rather, the first applicant’s evidence before the Tribunal suggested that his son was kidnapped for a ransom which was subsequently paid by the first applicant. There was country information to the effect that kidnapping of people in Pakistan for the payment of a ransom in return was common.
The Tribunal found the first applicant’s evidence to be vague and unconvincing. At [41] – [46] inclusive of its reasons, the Tribunal recorded the first applicant’s responses to questions put to him about his claims, the Tribunal finding that the first applicant did not engage with the Tribunal’s questions concerning the findings of the delegate. The Tribunal found as follows:
“[41] The Tribunal asked the applicant about his claim that he was at risk in Pakistan because he was seen to be a member of a group of wealthy Pakistani men. The Tribunal asked the applicant to clarify that claim. The applicant said that he had been just getting a monthly salary in Pakistan and then said that he was not rich person but was also not poor. The Tribunal found it difficult to get the applicant to clarify the basis for this claim of harm. He eventually told the Tribunal that the main reason he feared harm in Pakistan was because he had changed/converted to the Shia faith.
[42] He was asked about his assets in Pakistan and he said he owned a home in Karachi and his wife owned another property in her name. The other property had been rented at some stage but it was no longer rented because his son who lived in the United Kingdom had placed his furniture in that home. The applicant said that he had 3 Lakhs in the bank in Pakistan. The Tribunal asked if people would think that the applicant was rich in Pakistan. He said that there were people wealthier than him in Pakistan. He was asked if he thought he was at risk in Pakistan on the basis of any perception that he could be seen to be wealthy. He responded by saying that he thought he was at risk because of his religious conversion in Pakistan and that he thought he was being targeted for harm on a religious basis. The Tribunal on its overall assessment of the applicant's evidence about this claim finds that the applicant abandoned his claimed to fear harm if he returned to Pakistan on the basis of his membership of a particular social group of wealthy Pakistani men.
[43] The Tribunal asked the applicant if you wish to comment on the findings by the Department delegate in relation to his claims. The Tribunal noted that the delegate had accepted some issues but had not accepted other issues raised by the applicant. The applicant responded by saying words to the effect "we have converted to Shia faith" and "kidnapped because of Shia" and that there were many (militant/terrorist) groups in Pakistan engaged in kidnapping. The Tribunal did not believe that the applicant effectively engaged with the Tribunal's questions about the delegate's findings.
[44] The Tribunal raised the possibility of relocation (away from Karachi) in Pakistan if the applicant believed he was at risk of harm in his home area. The applicant responded by saying that there was no other place that was safe in Pakistan and that he would be traced anywhere in Pakistan and that his life would be in danger in Pakistan and he feared harm from the Taliban and other groups and referred to the deaths of 20 people who he said were killed by the Taliban.
[45] The Tribunal asked the applicant if he had actually been harmed in Pakistan and he said that he had been abroad from 1970 and had lived mainly overseas in that time and he only started receiving warnings after he had converted to the Shia faith. He also told the Tribunal that he was now old and he did not believe that he could live in Pakistan. He was asked what he would do if he had to return to Pakistan and he said that he/and his wife owned two homes in Karachi and his belongings were in Karachi. The Tribunal raised the issue of renting the other home (to generate an income) and the applicant said that his son (who lives in the United Kingdom) would have to move his belongings/furniture and pay for that if that house was rented. The Tribunal noted that was a matter for the applicant and his family.
[46] He was asked to be had anything else to raise with the Tribunal about his claims and he said he was in poor health and in poor physical condition and referred to a Greek shipping company having gone bankrupt and that outstanding wages (presumably to seamen) was being followed up or pursued by an Australian union and he referred to having lost 12 months salary but that the union had followed it up. He told the Tribunal that occurred in 1981/82. He had nothing further to raise with the Tribunal. The Tribunal's overall assessment of the applicants comments was that the applicant wished to remain in Australia.”
On the question as to whether people in Pakistan could generally practice their religion freely, at [50] of its reasons the Tribunal, relying on country information, said as follows:
“[50] The country report noted that with the exception of Pakistan's Ahmadi community most Pakistanis are able to practice their religion freely although opportunities for religious freedom are generally greater in large urban centres than rural areas. The Department assessment is that there is generally a low level of official discrimination in Pakistan on the basis of religion but there is a moderate level of societal discrimination. The DFAT Thematic report dated January 2016 in relation to Shias in Pakistan indicates that since September 2013 ranger paramilitary operations aimed at dismantling extensive militant and politico-criminal networks in Karachi have reduced the number of militant attacks and lessened the activities of criminal syndicates. According to official statistics there has been a 80% reduction in the number of targeted killings and a 93% reduction in the number of kidnapping for ransom incidents in Karachi since September 2013. That report notes that the Department assessment is that there is a moderate level of generalised violence and a low level of sectarian violence in Karachi and that the number of totality is from sectarian violence is relatively low in proportion to the cities large population but that the security situation remains volatile. The DFAT country report(see paragraph 3.33) indicates that since September 2013 ranger paramilitary operations aimed at dismantling extensive militant and politico criminal networks in Karachi have reduced the number of militant attacks and lessened the activities of criminal syndicates. According to official statistics, there has been a 73% reduction in the number of targeted killings and an 85% reduction in the number of kidnapping for ransom incidents in Karachi in 2015. The country report indicated that the Department does not yet have sufficient information to assess the sustainability of this downward trend in relation to crime statistics. The country report indicated in relation to state protection that Pakistan's laws and Constitution provide for state protection but the Department assessment is state protection is limited by resources and in some cases political will and personal means.”
At [61] of its reasons, when considering the veracity of the first applicant’s evidence to it, the Tribunal said as follows:
“[61] The Tribunal found the applicant to be vague in discussing his claims that he was at risk of harm from the Taliban. He was not able to address Tribunal questions about any particular part of the Taliban he claimed was seeking to harm him and told the Tribunal that he had been out of Pakistan a lot and was not familiar with the different groupings that constitute the Pakistani Taliban and that the people who we said he had received calls from described themselves as "Taliban". He was inconsistent (in terms of his written claims) in initially naming the Shia organisation that he said he had been keen on assisting in Pakistan. He was inconsistent in his evidence (in terms of his written claims) about the circumstances surrounding his eldest son leaving Pakistan. As indicated elsewhere in these reasons the applicant on occasions appeared to have difficulty in focusing on Tribunal questions and in responding to Tribunal questions about aspects of his claims. The Tribunal found his evidence about his claims that he had converted to the Shia faith and the related issues to be very general and lacking in detail and in the Tribunal's overall assessment to be unconvincing. His evidence about the reasons why he claimed to have converted to the Shia faith was also very general. The Tribunal found the applicant to be very vague and unresponsive when asked about his claims that he was at risk of harm because of his claimed membership of a particular social group of wealthy Pakistani men. In the Tribunal's assessment the applicant essentially withdrew that claim during the hearing and told the Tribunal that he feared harm principally because he claimed to have converted to the Shia faith. The Tribunal found the applicant's evidence about the delay in applying for a protection visa in Australia and his return visits to Pakistan to be very general and vague. In many respects he did not address the Tribunal's concerns about the delay in making an application and also about the return visits and that the delay and return visits were not consistent with the applicant's claims to fear harm if he returned to Pakistan.”
Having considered all of the evidence before it, the Tribunal at [67] – [69] of its reasons found that the first applicant lacked credibility, finding as follows:
“[67] The Tribunal finds on its assessment of the overall evidence and the applicant's credibility that the applicants motivation in applying for a protection visa is to remain in Australia to be with other members of his family and cared for by that family and to continue to receive healthcare for he and his wife. The Tribunal accepts, based on the medical information provided, that the applicants have a number of medical conditions.
[68] The Tribunal has considered the applicant's claims both individually and cumulatively and does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm for a refugee criterion reason if he returned to Pakistan either now or in the reasonably foreseeable future.
[69] The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that he faces a real risk of significant harm. The Tribunal has considered the applicant's claims and the evidence and available and relevant country information in relation to the applicant's claims and has referred elsewhere in these reasons to its assessment of those aspects. The Tribunal has considered the definition of significant harm contained in the Act as well as the relevant definitions contained in s.5 (1) of the Act in considering the applicant's claims.”
The Tribunal considered the fact that notwithstanding that the applicants had arrived in Australia in March 2014, an application for a Protection visa was not lodged by them until 8 October 2015, some 1.5 years later. It was entitled to have regard to that lag in time prior to the making of the Protection visa application when assessing the overall credibility of the applicants. [1]
[1] CED15 v Minister for Immigration and Border Protection [2018] FCA 451.
The Tribunal did consider the applicants’ claims based upon the material before it. As was said by Black CJ, French and Selway JJ in Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58], [61] and [68]:
“[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
[61] In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
…
[68] Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”
The Tribunal was entitled to find, at [68] of its reasons, that the applicants did not meet the relevant criteria under s. 36(2)(a) of the Act. The Tribunal was further entitled to find, at [71] of its reasons, that the applicants did not meet the relevant criteria under s. 36(2)(aa) of the Act.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 8 December 2021
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