DPQ16 v Minister for Immigration

[2018] FCCA 946

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 946

Catchwords:
MIGRATION – Protection Visa – Whether Administration Appeals Tribunal’s decision affected by jurisdictional error – where no error established in decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a), (aa)

Applicant: DPQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1105 of 2016

Judgment of: Judge Egan

Hearing date: 9 April 2018

Date of Last Submission: 9 April 2018

Delivered at: Brisbane

Delivered on: 9 April 2018

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1105 of 2016

DPQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan aged in his 30s. He arrived in Australia on a subclass 600 (sponsored visitor visa) on 3 October 2014, having been sponsored by his sister, who is an Australian permanent resident. The applicant is from the Swat district in the province of Khyber Pakhtunkhwa area of Pakistan. The applicant applied to the Department of Immigration for a protection visa on 19 December 2014.

2. A delegate of the Minister refused the applicant’s application for a protection visa. A review of that decision was heard by the Administrative Appeals Tribunal (AAT), and a decision of the AAT was handed down on 31 October 2016. That decision reaffirmed the decision of the delegate not to grant the applicant a protection visa. When so refusing the applicant’s application, the AAT dealt in detail with the matters raised before the delegate; in particular, the AAT found (paragraph 23) that it was not satisfied that the applicant had given a truthful account of his experiences in Pakistan or his reasons for seeking Australia’s protection.

3. Specifically, the AAT made significant findings in that regard.  It had concerns that the applicant had not been truthful about his travel history, given that his current passport, now lost, indicated that he had previously held a passport and the AAT had doubts as to the applicant’s reasons for obtaining a number of passports at various times.

4. The AAT was not satisfied that the applicant’s evidence indicated that he was in a leadership or organisation role in a village defence committee. Nor did the AAT accept the applicant’s account of his alleged experiences at the hands of the Taliban. In the view of the AAT, the evidence indicated that the applicant had sought to significantly embellish his role and his family’s profile in an attempt to establish that he was, in fact, sought by the Taliban.

5. The AAT did not accept the applicant’s circumstances or those of his family supported his claims that he was from a prominent family which was known to have been involved in activities opposed to the Taliban, and that he was sought by the Taliban thereby. The AAT did not accept that he could have avoided harm for some five years by living at his grandfather’s home, or other homes which were in close proximity to his own home.

6. The AAT considered the applicant’s claims that he was of such a level of interest to the Taliban that he was sought by a large group of people in March 2009, claims that no action was subsequently taken against him until March 2014, when he was purportedly telephoned again and told to stop working for the Village Defence Committee (VDC) – the AAT finding that such claims were not credible.

7. The AAT did not accept that the applicant had been sought by the Pakistan Army as indicated by the applicant in his evidence, nor did the AAT accept that the applicant had been imprisoned by the army for refusing to sign a document agreeing to the release of someone who was suspected to be a member of the Taliban. The AAT found that the applicant’s own evidence did not indicate he was in a leadership position or any supervisory position, and the AAT considered it incredible that the army would, in the first instance, rely on someone in the applicant’s position to sign such a document, or that the army would be unable to release persons if they wished to do so without authorisation from members of a village defence committee.

8. The AAT found that the applicant was merely an ordinary member of the VDC. It did not accept that he had any particular profile or that he was in a leadership role or in any significant organisational role. The AAT found that the applicant was not a member of a minority religious group, the military or the police, and the AAT has not accepted that he or his family were prominent or well-known or had an adverse political profile from the Taliban, or that they were actively involved in non-government organisations or social work.

9. The AAT was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there was a real risk that he would suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

10. The AAT found after due consideration that the applicant was not a person to whom Australia owed protection obligations pursuant to section 36(2)(a) of the Migration Act 1958 (“the Act”). The AAT also considered the alternative criterion in section 36(2)(aa) of the Act, and similarly found that Australia had no protection obligations; thereby, the AAT affirmed the earlier decision of the delegate.

    The first ground of review of the decision of the AAT is as set out in the application, filed by the applicant, on 28 February 2017.  The first ground is that the decision of the AAT:

    a)was affected by an error of law and,

    b)denied the applicant procedural fairness.

    As submitted by Mr James, on behalf of the first respondent, the application in respect of ground 1 is without particularity and is, thereby, defective.

11. Nevertheless, it would appear that the applicant is alleging an error of law. If one treats that as a complaint that the AAT arrived at an incorrect decision, then that is not a basis upon which I have jurisdiction to review. I am not in the position of conducting a merits review of what decision the AAT arrived at. It is trite that the AAT does not deny an applicant procedural fairness simply because it did not accept particular claims or evidence put forward by an applicant, to it. The AAT, in this case, has thoroughly dealt with the claims made by the applicant, and it did not accept those claims, after a critical examination of them.

12. The AAT closely examined the evidence before it, and decided that the applicant was not a person of credit.  As to procedural fairness, there is no indication that the AAT failed to properly consider all of the matters which were put before it, by the applicant.  Indeed, at no time did the applicant make any complaint, before the AAT, that he had not been given an appropriate opportunity to put forward his case or to say or submit before the AAT those matters which he wanted to raise.

13. It is of note that, at the hearing before the AAT, the applicant was represented by a migration agent. The AAT took into consideration documents and evidence provided by the applicant, including relevant country information. It invited the applicant to be heard, and the applicant was heard, and it notified the applicant of its decision and written statement of reasons. Each of those actions were taken in accordance with the provisions of the Act. The applicant does not submit that the decision of the AAT was affected by actual or constructive bias. Accordingly, I find that the AAT acted in accordance with its obligations under the Act, and that it made a decision that was open to it, which was free from legal or procedural error. Accordingly, I find that ground 1 of the application has not been made out.

14. I do not consider that there has been any jurisdictional error on the part of the AAT when considering the application before it. The second ground of the application is, really, no ground at all. It simply records that the applicant had made an application for assistance, through Legal Aid, and that as at the date of the filing of his application in 2017, he was waiting for a decision in that regard. The second ground, accordingly, has not been made out. I dismiss the application and affirm the decision of the AAT.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  17 April 2018