DUY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FCA 1486

FEDERAL COURT OF AUSTRALIA

DUY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1486

Appeal from:	DUY16 v Minister for Immigration and Border Protection [2022] FedCFamC2G 193
File number:	VID 165 of 2022
Judgment of:	BEACH J
Date of judgment:	9 December 2022
Date of publication of reasons:	12 December 2022
Catchwords:	MIGRATION – appeal  – absence of evidence – lack of probative basis – no point of principle – appeal dismissed
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	35
Date of hearing:	9 December 2022
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Mills Oakley
Solicitor for the Second Respondent:	The second respondent filed a submitting notice save as to costs and otherwise did not appear

ORDERS

VID 165 of 2022

BETWEEN:

DUY16

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	BEACH J
DATE OF ORDER:	9 DECEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1. The appellant appeals from a decision of the primary judge in the court below who dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 18 November 2016 which had affirmed the decision of a delegate of the Minister to refuse to grant to the appellant a protection visa.

2. For the reasons that follow I would dismiss his appeal.

   Background

3. The appellant is a citizen of Pakistan who arrived in Australia on 19 January 2015, travelling on a temporary work visa.  He applied for a protection visa on 13 February 2015.

4. Apparently the appellant claimed to fear harm from the Taliban in Peshawar because he played squash at an international level and coached both male and female children.  The appellant claimed that his cousin, who lived next door to his parents’ house and also played squash, was threatened and killed by the Taliban in August 2014, after the Taliban attempted to extort money from him.  The appellant claimed the murder was not properly investigated by the police and the identity of the killers remained unknown.

5. He claimed that in September 2014, a man delivered a threatening letter to his house which warned the appellant against playing or coaching squash and stated that if he failed to comply, he would regret it.  The appellant claimed that he reported the incident to the police.  

6. He claimed that another letter was left at his family home in October 2014 stating that he would be fined, and that if he did not pay the fine he would be shot like his cousin.  

7. The appellant claimed that he went into hiding and then obtained an Australian visitor’s visa on 3 January 2015, which was granted on the basis of the appellant’s involvement in a squash tournament in Brisbane.  He claimed that he could not return to Pakistan as the police could not provide protection and the Taliban would find him anywhere in Pakistan due to his sporting profile.

8. On 24 August 2015, the delegate interviewed the appellant.

9. On 4 February 2016 the protection visa was refused.  The appellant then applied to the Tribunal for review.

10. The Tribunal held a hearing on 16 November 2016 and then on 18 November 2016 affirmed the decision not to grant to the appellant a protection visa on the basis that he did not face a real chance of harm in the reasonably foreseeable future if he returned to Pakistan, arising from his playing or coaching squash, including coaching females, or from the general violence in Pakistan.

11. It is fair to say that the Tribunal had significant concerns with the reliability of the appellant’s evidence and the documents that he provided in support of his position.  The Tribunal identified various inconsistencies and implausibilities with the appellant’s evidence.

12. Now whilst the appellant claimed at the hearing that he had advertised as a squash coach, including to girls, from January or February 2014 and that this brought him to the attention of the Taliban, the Tribunal noted information provided by him that showed that he had been coaching squash many years prior to 2014.  The Tribunal put to the appellant that a number of documents provided by the appellant as part of his visa application described him as a coach dating back to 2008.  It also noted that whilst the appellant claimed to be an international squash player, his international activity appeared to have ceased in 2010.

13. Given the inconsistencies between the documents supplied by the appellant and his claims, the Tribunal did not accept that the appellant only commenced coaching girls in January 2014, finding that he had been a squash coach for an extended period of time, and from September 2010 onward was based in Peshawar.

14. Further, the Tribunal was not satisfied that there had been any alteration to the appellant’s circumstances in or around September 2014 that would have brought him to the attention of the Taliban.  The Tribunal accepted the appellant’s claim that some of the squash courts he coached at were located within a secure zone in Peshawar, however it noted that many others were not.  In the absence of any explanation from the appellant as to why he had not been personally approached by the Taliban whilst travelling outside of the secure zones, the Tribunal expressed concerns about the veracity of the appellant’s claims.

15. The Tribunal also had concerns about the documents provided by the appellant, being the first information report, police logbook report and Taliban letters, and the manner in which they were received by the appellant.  The Tribunal noted that both of the purported Taliban letters were written in pen on a photocopied base page and contained the same photocopy marks despite being drafted a month apart.  In these circumstances, the Tribunal did not accept that the documents were genuine or that the appellant had received threats from the Taliban as claimed.

16. The Tribunal considered the appellant’s claim that he had relocated to Lahore and then fled to Australia.  But the Tribunal noted that the appellant had not disclosed the Lahore address on the list of residential addresses he had supplied.  

17. Moreover, the Tribunal put to the appellant that he had spent time in Islamabad as evidenced by the fact that his visa application was made in Islamabad, all documents relied upon were attested to in Islamabad, and the appellant had departed from Islamabad for Brisbane in January 2015.  It also noted that the appellant had provided documents from Peshawar dated 3 and 4 December 2014 and that this information demonstrated he was obtaining documents from Peshawar at a time he claimed to be residing elsewhere.  The Tribunal did not accept the appellant’s explanations.

18. Further, the Tribunal found that the appellant had not been threatened or harmed by the Taliban because he played squash, coached squash or coached girls, and considered that the appellant had made up his claims in this regard.

19. Further, the Tribunal did not accept the appellant’s claim that squash players and coaches were being threatened and faced harmed from generalised violence in Peshawar.  Aside from one significant example, there was no information that squash players or coaches, including those who coached girls, were threatened or harmed in Peshawar.  The Tribunal had regard to country information that stated that squash continues to be played in Peshawar and further steps were being taken to develop the sport in Khyber Pakhtunkhwa.

20. Now the Tribunal considered the appellant’s claims that a variety of sports had been affected by generalised violence in Pakistan, including a suicide attack in 2008, a Taliban attack against an Army school in Peshawar and the kidnapping of teachers involved in polio vaccinations in Bara.  The Tribunal accepted that the volatile environment had caused a cessation of international sports in Pakistan, including Peshawar.  However, it noted that recent assessments by the Department of Foreign Affairs and Trade revealed a changing security situation in Pakistan.

21. In these circumstances, the Tribunal did not accept that squash players or coaches, including those who coached females, had been threatened or targeted by the Taliban in Peshawar, aside from one instance involving a high-profile female squash player. 

22. The Tribunal found that the appellant would be able to return to Peshawar and resume his squash playing and coaching career without being extorted or harmed.

23. Based on its findings that the appellant had not been threatened or harmed because of his playing or coaching squash, the Tribunal did not accept that the appellant faced a real chance of serious harm or had a well-founded fear of persecution.  The Tribunal also found that the appellant did not face a real risk of significant harm if he returned to Pakistan.

24. Further, the Tribunal did not accept the appellant’s claim that his family was forced to leave their home due to fear of harm and considered that this claim was made up by the appellant to support his overall claim.  Further, whilst it accepted that the appellant’s cousin was shot and killed in the manner claimed, it did not accept a new claim made by the appellant at the hearing that he was with his cousin when he was killed.  I note that the appellant ultimately resiled from this claim.

25. Further, the Tribunal accepted that there had been instances of violence in Peshawar, but found that the appellant had not been personally affected by any of the incidents.  Further, given that the country information showed that the level of violence in Pakistan was reducing including in Peshawar, and the fact that the issue of generalised harm was one faced by the general Pakistan population, the Tribunal did not accept that the appellant faced a real risk of significant harm or real chance of serious harm upon return to Pakistan.

26. The Tribunal therefore concluded that the appellant did not satisfy either the refugee criterion or the complementary protection criterion.

27. The appellant then sought judicial review of the Tribunal’s decision in the court below.

    The proceedings below

28. Before the primary judge, the appellant was legally represented and only pressed two of his grounds which suggested that there was no probative basis for some of the Tribunal’s findings.

29. One ground asserted that the Tribunal had no probative basis for its conclusion that the appellant had coached girls before 2014.  But his Honour found that this was an available inference from the matters the Tribunal noted indicating that the appellant had, contrary to his claims, been a coach for many years before 2014.  The Tribunal did not need direct evidence that the appellant had coached girls as well as boys in this period as the appellant’s submissions assert.  It was an available inference that he had coached girls as well as boys in this period.  His Honour so held.

30. The other ground raised before the primary judge asserted that the Tribunal had no probative basis for its concerns about the veracity of the appellant’s claims that the Taliban did not approach him personally to threaten him.  The primary judge considered that the Tribunal did not need direct evidence for such concerns.  His Honour accepted that to the extent that the appellant claimed that it was irrational for the Tribunal to have concerns that the Taliban had not approached him personally, reasonable minds could differ about this reasoning and so it was not irrational.  His Honour found that it was open for the Tribunal to reason that a group the appellant claimed was very concerned about his activities and wished to threaten him might take up the opportunity to do so personally rather than by letter.  The fact that such a group would likely choose a more direct way of threatening their victims was an inference well open.  His Honour dismissed this ground as well.

    The present appeal

31. The notice of appeal before me merely repeats these two grounds, but does not explain why his Honour was wrong in rejecting them.  The appellant has not identified any appellable error as to the decision or approach of the primary judge.

32. I provided the appellant with an opportunity to say anything further in support of the specific grounds, but he was unable to do so.  Rather, he focused upon the current situation in Pakistan and more general matters that were not on point.  I accept of course that the situation may have changed in Pakistan since the appellant left, but I can only proceed on the basis of the factual material then before the Tribunal.

33. After reviewing the material before the Tribunal I am satisfied that there is no substance to his complaints concerning the Tribunal’s factual findings or his Honour’s treatment below on the two specific grounds identified.

34. Moreover, it seems to me that if there was some substance to these asserted errors of the Tribunal that such errors were unlikely to have been material to the overall result before the Tribunal given the other findings made by the Tribunal which seriously impacted on the credibility of the appellant and the reliability of his claims.

35. The appeal ought to be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.

Associate:

Dated:       12 December 2022