Dla16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 166

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DLA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 166

File number(s):	SYG 3155 of 2016
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	15 March 2022
Catchwords:	MIGRATION – Practice and procedure – application for leave to rely on amended application – whether any of the grounds of application stated in the amended application reasonably arguable – none of the grounds is reasonably arguable – application to rely on amended application and application dismissed.
Legislation:	Migration Act 1958 (Cth) s 476
Division:	Division 2 General Federal Law
Number of paragraphs:	32
Date of hearing:	10 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr J Polese
Solicitor for the Applicant:	Juris Australia Lawyers
Solicitor for the First Respondent:	Ms J Strugnell of Minter Ellison

ORDERS

SYG 3155 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DLA16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	15 MARCH 2022

THE COURT ORDERS THAT:

1.The applicant’s application for leave to rely on the grounds of application stated in the amended application filed on 3 June 2021 is dismissed.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs set in the amount of $5,600.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 MANOUSARIDIS

INTRODUCTION

1. The applicant, a citizen of Pakistan, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

   BACKGROUND AND CLAIMS FOR PROTECTION

2. The applicant entered Australia in 2012 holding a student visa. A delegate of the Minister cancelled the applicant’s student visa in January 2014, after which he became an unlawful non-citizen until 31 March 2015, when the applicant applied for a Protection visa.

3. The applicant stated his claims for protection in a statement that forms part of his application for a Protection visa (Initial Statement).[1] The applicant claimed as follows:

   [1] CB34

   (a)The applicant is a Sunni Muslim. When he was 1 years old, his mother divorced, and the applicant was adopted by his aunt. The applicant remained with his aunt until his aunt’s daughter-in-law objected to the applicant staying with them.

   (b)The applicant’s mother then married Mr S, a man who was an active member of Sipah-e-Sahaba. Mr S was rude and violent towards the applicant.

   (c)When the applicant was 11 years old Mr S sent the applicant to a madrassa belonging to Sipah-e-Sahaba. The applicant studied there part-time for five years, where he memorised 5 chapters of the Holy Quran and studied Hadis.

   (d)The applicant was physically and sexually abused by a Mr K, who was a teacher and caretaker at the madrassa. The applicant told “his father”, but the applicant’s “father” beat him for not going to the madrassa.

   (e)The applicant’s imam (first imam) was one of the heads of Sipah-e-Sahaba, a banned religious organisation involved in terrorist activities. The first imam forced boys like the applicant to join Sipah-e-Sahaba as members. The first imam and his sons forced the applicant to sit for 10 days in a self-made tent every year during the holy month of Ramadan; and they forced young boys to study certain books which are basically against Shia Muslims.

   (f)The applicant witnessed the first imam shooting across the road on a Shia Imambargah, and the first imam’s sons “were a force ready for jihad always and involved in many Police cases”.

   (g)The first imam and one of his sons were killed. After their death another one of the first imam’s sons (second imam) took over charge of the Madrassa, and Mr K retained his job as a guard and part-time imam.

   (h)In 2010, after his stepfather died, the applicant stopped going to the madrassa, other than on Fridays, when he attended prayers. The second imam, however, asked the applicant several times to participate in Jihad training. The applicant avoided the questions by giving excuses.

   (i)In 2011 the second imam and his followers attacked a Moharam procession when the applicant was at his job. As a result Shia people were very angry and they attacked the mosque. One of the sons of the first imam (Mr S) called the applicant on his mobile and told the applicant to come to the madrassa for an important mission to save the mosque and Islam.

   (j)The applicant went for a meeting and the second imam told the applicant they had to go to a special training at a particular place. The applicant refused; and a student threatened the applicant with consequences, and threatened the applicant’s family for non-compliance. The applicant was scared for the safety of his family.

   (k)A few months later, the second imam sent Mr S to the applicant’s home to convince the applicant to join a training camp for Jihad. The applicant refused to do so. Mr S said that if the applicant would not join the applicant would be killed anyway.

   (l)One day a stranger came to the applicant’s uncle’s house and asked for the applicant. The applicant came out, and the stranger handed the applicant a mobile phone. Mr S was on the line. Mr S said the applicant had betrayed “us” because the applicant went to Lahore without informing “us”. Mr S again demanded the applicant join a training camp in Lahore. The applicant refused.

   (m)In April 2012 the applicant started looking for an opportunity to leave Pakistan, and the applicant did so by applying for, and being granted, a student visa.

   (n)After he arrived in Sydney the applicant started studying and performed casual work. The applicant ceased studying because he was “so much stressed”.

   (o)The applicant’s cousins are members of Mohajar Quami Movement (MQM), and were arrested “by the Rangers in recent operation in Karachi”. The applicant participated in MQM social work. The applicant’s family told him the “Rangers” have badly tortured the applicant’s cousin, and they received “very important information from them”. The applicant was told “the Rangers are now asking about” the applicant. The applicant is fearful “The Rangers” will arrest and torture the applicant.

4. Before the delegate the applicant gave evidence which the Tribunal found was inconsistent with the claims the applicant made in the Initial Statement or with evidence he gave before the Tribunal.

   (a)The applicant claimed that it was in 2004 he was first asked to participate in Jihad activities; the applicant avoided participating in these activities by explaining he was an only son, and had to work to be able to marry off his sisters; the applicant asked to be given 2 years to work for his family before joining the jihadi training camp; the applicant was not threatened into joining a jihadi group in 2006; but the threats began in 2008 after the death of the first imam.[2]

   (b)The applicant’s involvement with the MQM consisted in his going to their offices each week; he was a “helping person” with his cousin which involved cleaning roads and gutters two or three times a week.[3]

   (c)Three months before his interview by the delegate, the applicant’s cousins had been detained by the Rangers.[4]

   [2] CB108

   [3] CB198, [22]

   [4] CB198, [22]

5. In his evidence to the Tribunal, the applicant claimed that his stepbrother is an active member of Sipah-e-Sahaba, and the applicant’s stepsister and stepbrother frequently visit the applicant’s mother to obtain information about the applicant. The applicant said he would be unable to return to Pakistan because his stepbrothers would know he has returned and pass on information to Sipah-e-Sahaba.[5] The applicant also claimed he was heavily involved with the MQM. The applicant’s cousins would call the applicant to provide security for “Abbas Alam”.[6]

   [5] CB197, [18]

   [6] CB199, [23]

   TRIBUNAL’S REASONS

6. The Tribunal accepted the applicant attended a strict religious madrassa until 2010; terrorist groups have infiltrated some madrassas; the applicant attended one such madrassa; the applicant was an unwilling participant in some stoning attacks against Shia Imamarbagahs; the applicant was at times asked to become involved in other jihadist activities associated with Sipah-e-Sahaba; and the applicant was the victim of sexual abuse when he was a young boy.[7] The Tribunal, however, did not accept any of the applicant’s claims relating to his refusal to be involved in more significant jihadist activities.[8]

   [7] CB197-198, [19]

   [8] CB198, [19]

7. The Tribunal relied on the following matters:

   (a)The Tribunal found the applicant’s evidence about targeting by Sipah-e-Sahaba was confused and inconsistent. The Tribunal referred to what it found to be the inconsistent accounts the applicant made in the Initial Statement and before the delegate.[9]

   (b)The Tribunal considered it is not credible that Sipah-e-Sahaba, a Sunni extremist organisation, would threaten the applicant and his family for refusing to join in their activities but would allow the applicant over several years to avoid involvement in jihadist activities.[10]

   (c)The Tribunal considered it is not credible that the Sipah-e-Sahaba, after threatening the applicant, but allowing him to postpone his involvement with them, monitor his whereabouts and follow him to Lahore because the applicant had failed to inform them of his departure from Karachi.[11]

   (d)There was a considerable delay between the date on which applicant arrived in Australia, and the date on which he applied for a Protection visa. The Tribunal noted the applicant lodged his application for a Protection visa three years after he arrived in Australia, and only after he remained in the community working unlawfully for 15 months. Had the applicant been sought by Sipah-e-Sahaba the applicant would have lodged an application for protection soon after his arrival. The considerable delay in the applicant applying for a Protection visa “is further indicative of the fact that the applicant’s claims have been fabricated”.[12]

   [9] CB198, [19]

   [10] CB198, [20]

   [11] CB198, [20]

   [12] CB200, [28]

8. The Tribunal accepted that members of the MQM have been killed in Karachi, mainly by the Taliban; and that Rangers in Karachi have increasingly focused on the MQM’s criminal networks in Karachi. The Tribunal, however, did not accept the applicant’s claims in relation to the MQM.[13] The Tribunal relied on the following:

   (a)The Tribunal found that, when interviewed by the delegate, the applicant knew very little about the MQM, the branch he purportedly worked for, or his cousins’ role in the MQM.[14]

   (b)The applicant’s evidence before the delegate of his involvement with the MQM differed from his evidence before the Tribunal.

   (c)The Tribunal found the applicant’s evidence why the Rangers would be interested in him because of his cousins’ possession and arrest in 2015, given the applicant had left Pakistan in 2015, was vague and unpersuasive.

   (d)The considerable delay in the applicant applying for a Protection visa “is further indicative of the fact that the applicant’s claims have been fabricated”.[15]

   [13] CB199, [25]

   [14] CB199, [25]

   [15] CB200, [28]

9. As I have already noted, the Tribunal accepted the applicant was the victim of sexual abuse; and it accepted the opinions contained in a psychiatrist’s report on which the applicant relied that the applicant has experienced ongoing psychological trauma as a result of these experiences, and the applicant’s difficult upbringing at the hands of a controlling and religiously strict stepfather. The Tribunal, however, did not accept that this explained the applicant’s delay in lodging his application for a Protection visa, and it found that, despite the applicant’s psychological and emotional problems, the applicant was able to give evidence and present arguments, and he had been assisted by an experienced migration agent. The Tribunal found that the problematic nature of the applicant’s evidence was “not the result of his past trauma and consequential anxiety and depression”, but was “instead due to the fact that he has manufactured his claims for protection”.[16] Further, the Tribunal was not satisfied there is a real chance the applicant will be the victim of sexual assault at the hands of persons in his madrassa or mosque on his return to Pakistan. The Tribunal found the sexual assaults were opportunistic, and perpetrated by those in a position of control.[17]

   [16] CB200-201, [29]

   [17] CB201, [30]

10. The Tribunal, therefore, found there is not a real chance the applicant will suffer serious harm for reasons of his race, religion, nationality, or membership of a particular social group if he returns to Pakistan, now on in the foreseeable future.[18] The Tribunal also concluded that was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm.[19]

    [18] CB202

    [19] CB202, [34]

    GROUNDS OF APPLICATION

11. The applicant relies on four grounds stated in an amended application filed on 3 June 2021. These purport to replace the single ground of application contained in the application filed on 15 November 2016.

12. The applicant did not file the amended application with the leave of the Court; and the Minister opposes the Court granting the applicant leave to rely on the amended application because the applicant has given no explanation for the delay in applying for the amendments and, in any event, the proposed amendments lack sufficient merit to warrant the granting of leave. With the agreement of the parties’ legal representatives, I proposed to proceed on the basis that what was before me was an application for leave by the applicant to rely on the grounds contained in the amended application, but that the parties should make their submissions on the assumption that such leave had been granted.

    Proposed ground 1

13. Proposed ground 1 is as follows (errors in original):

    The Tribunal error by rejecting the applicant evidence on every account without offering either alternative facts or evidence. The Tribunal remarks that the applicant's evidence is manufactured without providing reasons to conclude such remarks is error.

14. In his counsel’s written submissions the applicant submits that paragraph 29 of the Tribunal’s reasons is “most telling”, because the Tribunal made a decision on the applicant’s credibility without any support. The applicant further submits the Tribunal relied on certain facts which did not or do not exist.

15. Proposed ground 1 is not arguable. Nor are the submissions made in support of it. The Tribunal provided reasons for finding that the applicant’s evidence in relation to Sipah-e-Sahaba and the MQM was manufactured. As I have noted earlier in these reasons, the Tribunal relied on the applicant having given inconsistent evidence in support of his claims relating to Sipah-e-Sahaba and the MQM, the applicant’s evidence being vague, and the applicant’s delay in applying for a Protection visa after he arrived in Australia. It was reasonably open to the Tribunal to rely on these matters to find that the applicant had manufactured his claims in relation to Sipah-e-Sahaba and the MQM. Further, the applicant does not refer to the matters on which the Tribunal relied and, consequently, does not submit it was not reasonably open to the Tribunal to rely on them.

16. For these reasons I would not grant the applicant leave to rely on proposed ground 1 of the amended application.

    Proposed ground 2

17. Ground 2 is as follows:

    The Tribunal failed to take into account relevantly, the mental state of the applicant and as such, there was an insufficient logical or evidentiary basis for Tribunal's adverse credibility finding against the applicant

18. In his counsel’s written submissions the applicant submits the Tribunal considered the applicant’s trauma, but not his state of mind; the Tribunal did not properly consider the applicant’s trauma, his state of mind and illness adjustment disorder with anxiety and depression; the Tribunal did not follow its own guidelines, and did not consider them when addressing or making findings on credit or memory; and the Tribunal concluded the applicant manufactured his evidence, even though it accepted the applicant suffered from trauma, without providing any reasoning to support such findings.

19. Ground 2 is not arguable. The Tribunal referred to and accepted the opinions of the consultant psychiatrist on which the applicant relied.[20] The Tribunal considered whether, notwithstanding the applicant’s psychological and emotional problems, the applicant was able to give evidence and present evidence. The Tribunal concluded the applicant was able to do so and, moreover, the applicant was assisted by an experienced migration agent. The Tribunal’s findings are consistent with and supported by the opinions expressed in the psychiatrist’s report. The report stated there was no evidence the applicant suffered from any auditory or visual hallucinations or delusional ideas; although the applicant had difficulty concentrating, the applicant’s orientation and memory was reasonable; the applicant appeared to be functioning at an average level of intelligence; and the applicant had reasonable insight into his condition. Further, it may reasonably be inferred that the Tribunal observed the applicant while giving evidence, and formed the view that the applicant was able to give evidence, and present arguments.

    [20] The opinions are contained in a report dated 27 August 2015, and is at CB95

20. There is another point to note. The applicant’s submissions assume the applicant’s diagnosis of adjustment disorder with anxiety and depression affected or had the potential to affect the applicant’s ability to give evidence; and, moreover, the diagnosis is a matter that could rationally explain the matters on which the Tribunal relied for finding the applicant fabricated his claims, these matters being the applicant’s giving inconsistent evidence, and his delay in applying for a Protection visa. But the applicant does not identify any evidence or other material that could support such assumption. In particular, the applicant does not identify any opinion contained in the psychiatrist’s report that could rationally afford a basis for finding that the matters on which the Tribunal relied for finding the applicant fabricated his claims in relation to Sipah-e-Sahaba and the MQM were due to the matters the psychiatrist diagnosed. The psychiatrist’s report on which the applicant relies contains no opinion that is reasonably capable of supporting a finding that the applicant’s giving inconsistent and vague evidence, and his delay in applying for a Protection visa, is due to the applicant’s mental condition, as diagnosed by the psychiatrist.

1. For these reasons alone, I would not grant the applicant leave to rely on proposed ground 2 of the amended application.

   Proposed ground 3

2. Proposed ground 3 is as follows:

   The Tribunal made an error by not investigating claim of the applicant that he joined and worked with the sector in charge of Muthada Qaomi Movement (MQM) a political party. Tribunal further ignore[d] that the members of this party were involved in fascist activities being used by the high command of the party head office in UK as a result several has been killed and arrested in his home town Karachi. The Tribunal ignored that evidence put forward by the applicant published in newspapers that his cousin has been arrested and tortured by the Police due to his involvement with MQM whom he was working closely. Further Police visited his house looking for him.

   PARTICULARS

   Paragraph 30 of the subject decision

3. In his counsel’s written submissions, the applicant submits the Tribunal did not consider newspaper articles the applicant provided which reveal there is a high risk of harm to people in the MQM.

4. This proposed ground is not arguable. The Tribunal considered, but rejected the applicant’s claims in relation to the MQM. Further, the Tribunal referred to the newspaper and other materials the applicant provided;[21] and to country information in relation to the MQM.[22] This information was not relevant to the Tribunal’s assessment of the risk of harm to the applicant, because the Tribunal found the applicant fabricated his claims in relation to the MQM.

   [21] CB195-196

   [22] CB199, [25]

5. For these reasons I would not grant the applicant leave to rely on proposed ground 3 of the amended application.

   Proposed ground 4

6. Proposed ground 4 is as follows:

   The Second Respondent (Tribunal) made a jurisdictional error of legal unreasonableness.

   PARTICULARS

   a. The decision of the Tribunal is judicially reviewable for legal unreasonableness, including errors of fact which are irrational, illogical or lack intelligible justification: BHD18 v Minister for Immigration [2020] FCAFC 151 at [29]; cf CXX19 v Minister for Immigration [2021] FCA 239 at [74]-[75];

   b. Where the traditional notions of legal unreasonableness are not themselves dispositive, a decision of the Tribunal may be impugned for imposing an arbitrary standard of conduct upon persons relevant to the Applicant's claims, so long as the Tribunal was not merely applying a reasonable or rational generalisation in order to test the Applicants' account: CLOJ 7 v Minister for Immigration [2021] FCCA 720 at [32]-[37];

   c. The Tribunal found at paragraph 20 of its decision that it was not credible that:

   i. “Sipah-e-Sahaba, a Sunni extremist organisation, would and threaten the applicant and his family for ‘non compliance’ and refusal to join in their activities, but would nevertheless be willing to exhibit such a considerable degree of patience such that they would allow the applicant over the course of several years to avoid involvement in jihadist activities”;

   ii.“they would then, after threatening him but allowing him to postpone his involvement in the organisation, monitor his whereabouts and follow him to Lahore because he had failed to inform them of his departure from Karachi”; and

   iii.would consider it necessary, after some years of permitting him to postpone his involvement in the organisation, to monitor his movements and follow him to Lahore”;

   d. The Tribunal made a finding which was irrational or illogical or for which there was no justification. Alternatively, the Tribunal relied on generalisations in circumstances where it was not rational or reasonable to do so. This is because the Tribunal applied rational standards of conduct to persons who, by the Tribunal's own characteristic, were extremist or fanatical. It is legally unreasonable to judge for credibility the conduct of persons engaging in such activity by reference to the Tribunal’s own rational standards of behaviour.

7. This ground is directed to the Tribunal’s finding as implausible the evidence the applicant gave before the delegate that an extremist group, Sipah-e-Sahaba, from 2004 onwards, would threaten the applicant and his family for the applicant’s non-complying with its requests that he join in their activities, without taking any action against the applicant to give effect to the threats. The applicant makes two submissions. First, the Tribunal relied on a generalisation to the effect that terrorist organisations do not continue to make threats over the period the applicant claimed were made to him without the threats being carried out, but this generalisation is unreasonable or illogical. Second, the applicant submits that the generalisation is unreasonable because it assumes that terrorist organisations would act rationally in circumstances where terrorist organisations are extremist or fanatical.

8. None of these submissions is reasonably arguable. As to the first of the applicant’s submissions, it was open to the Tribunal member to rely on her common sense and the knowledge she has acquired both as a member of the community at large, and as a member of a specialist Tribunal experienced in assessing applications for protection, to formulate and apply a generalisation about how terrorist groups behave; and a generalisation to the effect the Tribunal applied, namely, that terrorist groups like Sipah-e-Sahaba do not patiently threaten a person with harm over the period the applicant claimed they threatened him without carrying out the threat, is a generalisation it was reasonably open to the Tribunal to formulate, and on which to rely to find as implausible the applicant’s evidence that Sipah-e-Sahaba threatened him since 2004 without carrying out the threats they made.

9. The applicant’s second submission itself is based on a generalisation to the effect that terrorist organisations, being extremists and fanatical, cannot act rationally. Such generalisation itself is unreasonable. An organisation may have extreme and fanatical beliefs and objectives; but that does not mean its members cannot or do not act rationally to achieve to give effect to their beliefs or to achieve their objectives.

10. For these reasons I would not grant the applicant leave to rely on proposed ground 4.

    CONCLUSION AND DISPOSITION

11. Given I have found that none of the proposed grounds contained in the amended application is reasonably arguable, it is unnecessary to consider other matters that might otherwise be relevant to the exercise of the discretion to permit the applicant to rely on the amended application. I propose, therefore, to dismiss the applicant’s application for leave to rely on the amended application. Given the applicant did not rely on the ground of application contained in the original application, it follows that the application must also be dismissed.

12. The parties’ legal representatives agreed that costs should follow the event. Ms Strugnell, who appeared for the Minister, submitted that if the Minister were to succeed the Minister would seek an order that the applicant pay the Minister’s costs set in the amount of $5,600. I am satisfied that costs should follow the event, and that $5,600 is a fair indemnity for the costs the Minister has incurred in successfully resisting this application. I will therefore order that the applicant pay the Minister’s costs set in the amount of $5,600.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       15 March 2022