DUI16 v Minister for Immigration

[2017] FCCA 1993

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1993

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal correctly identified the relevant law and made adverse findings that were open – the Tribunal complied with its obligations of procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425, 476

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: DUI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3500 of 2016

Judgment of: Judge Street

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Sydney

Delivered on: 21 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Baril
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3500 of 2016

DUI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 November 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant was granted a Student (subclass 572) visa on 10 March 2011 and arrived in Australia on 13 April 2011. The applicant’s Student (subclass 572) visa was cancelled on 4 April 2012 due to the applicant’s poor academic performance. The applicant remained unlawfully in Australia from 5 April 2012 until 12 November 2014. 

3. The applicant indicated from the bar table that the police came to the place where he was living with certain other people and on that occasion shortly before he applied for protection, identified that he did not have a valid visa, and it was shortly thereafter on 21 November 2014 that the applicant lodged an application for a protection visa.

The Applicant’s protection claims

1. The applicant claimed to fear harm because he was accused of causing the death of a person in 2003. The applicant alleged that he was falsely accused and nominated in the police case. The applicant alleged the family of the deceased person has threatened him and that the police are not able to provide protection.

2. The applicant alleged that while in Pakistan in 2003 he was accused of murdering his 16-year old friend. The applicant explained that the incident occurred whilst on a motorbike, and the friend was carrying a gun, the gun went off and the bullet hit the friend.

3. The applicant alleged that he got scared and ran from there to his home. The applicant alleged that he returned to his home in the city.  However, he stopped going to college because he was very disturbed, and after 23 days or so told his parents about the incident.

4. The applicant observed that as he was a minor at the time, his parents took him to the police station, and he told the police about the incident and he was remanded to police custody and the case was then started in the Court.  About fourteen months after, the victim’s family decided to pursue the matter, but as the applicant was under 16 no sentence was imposed and the matter was closed. The applicant feared that the friend’s family will kill him to take revenge. 

The delegate’s decision

1. On 11 June 2015 the delegate found the applicant failed to meet the criteria for the grant of a visa and refused the same. The delegate found the applicant was not a credible witness and was not satisfied the applicant had a well-founded fear of persecution in Pakistan as claimed.

The Tribunal’s decision

1. The applicant applied for review on 19 June 2015. By letter dated 10 August 2016, the applicant was invited to attend a hearing on 24 October 2016. The applicant appeared on that date to give evidence and present arguments, and evidence was also taken from two other witnesses, one being the applicant’s father. 

2. On 27 October 2016, the Tribunal wrote to the applicant inviting the applicant to provide further information for the Tribunal to consider.  Further information was provided by the applicant to the Tribunal following that letter, including a report from Dr Khan, a reference from an advocate, as well as certain other information.

3. The Tribunal, in its reasons identified the applicant’s background, the application for review and the applicant’s claims to fear harm. The Tribunal identified the applicant’s evidence at the hearing and raised with the applicant the issues it had in respect of the applicant’s credibility. The Tribunal correctly set out the relevant law. 

Consideration of Refugee Convention Criteria

1. The Tribunal identified that it had difficulty accepting that the applicant was blamed for the death of his friend in 2003 as the applicant had stated at the hearing that as a result of that death he moved away from his home area, however, in his protection application he stated that he lived in that home area up until April 2011, which is when the applicant came to Australia.

2. The Tribunal also made reference to the applicant’s delay in making a protection visa application and that it was not made until after he had been detained. The Tribunal did not consider the applicant’s behaviour as being consistent with someone who feared returning to Pakistan from 2011 onwards. The Tribunal did not accept the applicant has been blamed for the death of his friend or was stopped by two men in May 2005 or suffered any past Convention-related persecution. 

3. The Tribunal found the applicant faces no real chance of Convention‑related persecution from the friend’s family or anyone else if he returns there. The Tribunal was not satisfied that the applicant had a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Pakistan. 

4. The Tribunal made reference to the consequences if its finding was wrong in relation to the applicant having been blamed for the death of the friend in 2003 and having been stopped by men in 2005. The Tribunal made reference to the applicant having stated that he had moved from his home area to another area and was living a routine life.  The Tribunal also made reference to the applicant stating he continued his intermediate and Bachelor of Fine Arts studies without incident for the six years up until he came to Australia in April 2011.

5. The Tribunal noted that the applicant, in his written statement, asserted that he had remained in hiding at the relevant place.  The Tribunal did not accept that to be so, given that at the hearing the applicant stated he was living a routine life and went to school and continued with his studies. In those circumstances, the Tribunal found the applicant was living an open life without incident for the six years up until the applicant came to Australia in 2011.

6. Accordingly, the Tribunal did not accept that the friend’s family, or anyone else pursued the applicant after he moved to another location.  The Tribunal was not satisfied there was a real chance the applicant would be pursued by the family even if he returns to his home region now or in the reasonably foreseeable future. 

7. The Tribunal was not satisfied the applicant faces a real chance of serious harm from the friend’s family or anyone else, now or in the reasonably foreseeable future if he returns to Pakistan. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under the Refugees Convention and found the applicant failed to meet the criteria under s.36(2)(a) of the Migration Act.

Consideration of complementary protection criteria

1. The Tribunal found there are not 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 as defined in s.36(2A) of the Migration Act. The Tribunal found the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act and affirmed the decision under review.

Before this Court

1. On 20 April 2014, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. The grounds in the application are as follows:-

   1. The Second Respondent made jurisdictional error by making a decision which was unreasonable in finding that the failure by the applicant to apply for protection meant that his protection claims are untrue.

   2. The Second Respondent made jurisdictional error in that it failed to afford the applicant procedural fairness or to comply with the requirements of Sec 425 of the Migration Act 1958, by not putting to the applicant the critical issues arising on the review.

   Particulars:

   Particulars will be supplied when a transcript of the hearing will be available.

   3. The Second Respondent made jurisdictional error by making a finding that because the applicant has not been targeted or harmed in Bahawalpur after moving from Gujranwala that he faced no risk of harm if he returned to Gujranwala now or in the reasonably foreseeable future such finding was illogical and irrational.

   4. The Second Respondent made jurisdictional error by failing to enquire or make findings as to where the applicant would be likely to live if forced to return to Pakistan.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedure fairness to the applicant. 

4. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied that the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The Applicant’s submissions from the bar table

1. The applicant asserted from the bar table that he was living in hiding in the period from 2003 until 2011, despite the Tribunal finding otherwise. The applicant also proffered an explanation as to why he took so long to apply for protection. The applicant acknowledged, however, that he was living unlawfully in Australia at the time he was found by police and it was after that that he applied for protection.

2. The applicant asserted from the bar table, in reply to the submissions of the first respondent, that the applicant was in substance seeking an impermissible merits review, that he did not have a barrister, and could not explain it properly.

3. The Court invited the applicant to say anything else he wished in relation to why the Tribunal’s decision was unlawful or unfair, and the applicant invited the Court to look at his case with a soft heart.

4. This Court does not have power to make fresh findings of fact and cannot review the merits. This Court cannot make a decision on compassionate grounds and has no power to do so.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. 

Consideration

Ground 1

1. Ground 1 in substance seeks to take issue with the adverse findings by the Tribunal. The adverse findings by the Tribunal were the subject of rational and logical reasons in support of the adverse credibility findings. Those adverse credibility findings were open and not unreasonable on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Ground 1, in substance, reflects a disagreement with the adverse findings by the Tribunal. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, this is a case where it was apparent that the applicant’s credit was an issue before the delegate. On the face of the material before the Court, the Tribunal also made apparent to the applicant that his credit was in issue by putting matters to the applicant. On the face of the material before the Court, the applicant had a real and meaningful hearing in the conduct of the review before the Tribunal.

2. On the face of the material before the Court, the Tribunal complied with its obligations under s.425 of the Migration Act and no issue of the kind raised in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 arises in the present case.

3. Further, no information was identified that enlivened any obligation under s.424A of the Migration Act and no transcript has been put into evidence despite the opportunity having been provided by the orders of the Registrar for the applicant to do so. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal identified reasons in support of its adverse credibility findings, which included the applicant’s ability to continue and complete his degree, as well as the applicant’s delay in applying for protection. Those were rational and logical matters that support the adverse credibility findings made by the Tribunal. Those findings cannot be said to be unreasonable. On the face of the material before the Court, the Tribunal correctly identified the relevant law and made adverse findings that were open. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to ground 4, there was no obvious enquiry that could be easily made in respect of a material fact by the Tribunal so as to give rise to any duty to make an enquiry. The findings made by the Tribunal in relation to the applicant were open on the material before the Tribunal.

2. It was not necessary for the Tribunal to determine where the applicant would live on return to Pakistan. The Tribunal correctly applied the relevant tests in respect of the Refugees Convention and complementary protection. No jurisdictional error is made out by ground 4.

Conclusion

1. As the applicant fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 September 2017