Eio20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1165

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1165

File number(s):	LNG 65 of 2020
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	31 May 2021
Catchwords:	MIGRATION – judicial review – protection visa application – one ground for review – no matters of principle – application dismissed
Legislation:	Migration Act 1958 (Cth) s 36
Number of paragraphs:	27
Date of last submissions:	15 February 2021
Date of hearing:	15 February 2021
Place:	Hobart (via Microsoft Teams)
Counsel for the Applicant:	Mr Barnes
Solicitor for the Applicant:	Tasmanian Refugee Legal Service
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

LNG 65 of 2020

BETWEEN:

EIO20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	31 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,464.00.

REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. The applicant in this matter seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 23 December 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa that was applied for by the applicant on 16 May 2014. 

2. At the hearing of the matter in this jurisdiction, the applicant relied upon an Amended Application filed on 1 February 2021 for judicial review, which amended ground 1 and abandoned grounds 2 and 3 of the original application filed on 12 October 2020. 

   BACKGROUND

3. The applicant is a 28-year-old citizen of Pakistan who arrived in Australia on 7 April 2012 holding a student visa. In May 2013, the applicant returned to Pakistan for a two-week period, and following his return to Australia in July of 2013, applied for a protection visa. 

4. The matter was initially remitted by consent from the Federal Circuit Court of Australia for reconsideration by the Tribunal in January 2017. The Tribunal affirmed the decision of the delegate again, in September 2020. 

5. The applicant is a Shia Muslim and ethnic Syed. He was found by the Tribunal to also be a member of a particular social group, as a result of his membership of an organisation described as ‘Excellence International Movement for Human Rights and Obligations’, whom are said to be a group undertaking human rights work.

6. In his visa application, the applicant also expressed concerns with respect to the following issues:

   (1)Firstly, that he would be attributed with pro-Western attitudes.

   (2)Secondly, that he comes from a high profile and well-educated family.

   (3)Thirdly, that he would be a failed asylum seeker from a Western country if he returned to his home country.  

   (4)Finally, based on his participation in pro-Shia demonstrations in Australia. 

7. The Tribunal Member carefully recounted the claims the applicant had made in his original application (see paragraph [29] of the Tribunal decision dated 8 September 2020 (‘the decision)), and the additional claims that were made by the applicant before the delegate for the Minister: see paragraph [31] of the decision.

8. The Tribunal did not form a positive view of the applicant's credibility, as a result of the lack of detail in his evidence (see paragraph [68] of the decision). 

9. The Tribunal carefully considered that the application was made only after the applicant had already returned to Pakistan for two weeks in May 2013, despite the more significant events claimed, having occurred in 2010. The Tribunal Member concluded:

   72. The applicant claimed that he did not make an application for protection upon at the time of first arriving in Australia because his student visa was valid until March 2014. As a result, he believed that there was no rush for him to apply for a protection visa. However, if the applicant had a well-found fear of persecution in Pakistan, the Tribunal would have expected him to make an application for protection as soon as possible upon his arrival in Australia. He claimed that it was only after he was targeted on his return trip to Pakistan that he decided to apply for a protection visa. The Tribunal put to the applicant that because he returned to Pakistan, it would appear he had no fear of being harmed as a result of the kidnapping. The applicant claimed that he was afraid to return but did so because he was home sick. The Tribunal does not accept that in circumstances were the applicant claims he feared for his life that he would return to Pakistan because he was home sick.

   73.While the Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears, in this case the Tribunal has some reservations about the credibility of the applicant’s evidence of his kidnapping in November 2010 based on the circumstances in which the applicant applied for a protection visa. While the Tribunal can accept that the applicant may have had some fear of returning to Pakistan, the fact that he did return in 2013 indicates that he was satisfied that there was not a real chance he would be seriously harmed upon his return to Pakistan by reason of having been kidnapped as claimed.

   74. The Tribunal finds the significant delay in making his application for a protection visa and his return to Pakistan important factors in assessing the credibility of the applicant’s claim that he was kidnapped in November 2010 by LeJ. Therefore, based on the applicant’s delay between the first attack and his arrival in Australia, his return to Pakistan and the delay in making his application for protection upon his return to Australia, the Tribunal, on an objective basis, holds great reservations about the credibility of the applicant’s evidence in relation to the kidnapping and the genuineness or depth of the applicant’s fear of persecution as a result of being kidnapped as claimed.

10. The Tribunal considered the applicant’s membership of EIMHRO, concluding:

    89. In circumstances where the applicant claim to have been a member of the EIMHRO since 2008 and having worked for the organisation as an administrative assistant to the Secretary General, visiting jail and organising seminars and being promoted to the District Executive Committee as claimed the Tribunal would have expected him to have greater knowledge of the structure and activities of EIMHRO. Despite having would have expected the applicant to have been able to describe the activities of the organisation (and in particular his involvement) to the Tribunal in great detail. Given the vague nature of the applicant’s evidence and lack of detail, together with the fact that the department and the Tribunal were not able to find any reference EIMHRO, the Tribunal does not accept that the organisation exists or is legitimately involved in human rights activities as claimed by the applicant. As such, the Tribunal finds that EIMHRO is not an organisation involved in human rights activities as claimed and that the applicant was not a member as claimed. Even if the Tribunal is wrong about the existence of EIMHRO, then based on the applicant’s evidence the Tribunal finds that the organisation is so small and its activities as a human rights organisation so insignificant that the applicant’s involvement in the organisation would not come to the attention of the LeJ as claimed.

    90. Therefore, based on the applicant’s own evidence, the Tribunal finds that there is no real chance that the applicant will be seriously harmed by reason of his membership or involvement with the EIMHRO as claimed.

11. The Tribunal went on to deal with the applicant’s concerns about ethnic violence, saying:

    101. The applicant did not refer to having been targeted as a result of his Sayyid ethnicity. In addition, the applicant did not provide any evidence that he or his family were persecuted as a result of their ethnic background as Sayyid. The Tribunal has had regard to the DFAT report70 in relation to Shia in Pakistan which assess that most Shia in Pakistan face a low risk of sectarian violence. Therefore, based on the available country information the Tribunal finds that there is no real chance that the applicant will be seriously harmed if he returns to Pakistan by reason of being an ethnic Sayyid.

12. The Tribunal rejected the applicant’s claims that he was at a real risk of harm, as a result of being Shia Muslim, based on findings that Shias living in Lahore and Islamabad faced a low risk of sectarian violence (at paragraph [106] of the decision) and that the applicant was not a prominent Shia nor did he have a high profile: see paragraph [109] of the decision. 

13. The Tribunal, in substance, rejected most of the applicant’s evidence, and in turn, his application. 

    GROUNDS FOR JUDICIAL REVIEW

14. The applicant’s sole ground for review was in the following terms:

    1.The Tribunal committed jurisdictional error by failing to consider and determine an integer of the Applicant's claim that was expressly advanced and squarely raised on the materials, namely if he was returned to Pakistan as a Shia Muslim actively promoting human rights, he faced a significant risk of harm and therefore met the complimentary protection obligations as stated in s36(2)(aa) of the Migration Act 1958 (Cth).

    PARTICULARS

    The Applicant submitted to the Tribunal (CB 148) in the context of a claim for complimentary protection, that he faced a risk of significant harm (being a risk of degrading treatment and punishment) upon return on account of being a person who would actively support human rights generally, and particularly for Shia Muslims, and the right of women to education. The Tribunal purported to deal with the Applicant's complimentary protection claims at CB 297-299 [146]-[157]. The Tribunal overlooked and did not consider and determine the particular claim that had been advanced by the Applicant.

15. The applicant relied upon submissions that he made to the Tribunal on 10 August 2017, which appear at Court Book (‘CB’) pages 148 and 150, and are summarised in paragraph [1] of the Applicant Submissions and paragraph [30] of the Minister’s submissions respectively as follows:

    1.The Applicant, in a written submission filed with Tribunal on 10 August 2017, made the claim that if he were to be “returned to Pakistan he would wish to resume his studies. He would also wish to resume his active interest in the human rights of the Shia minority in Pakistan and his active promotion of human rights generally and, in particular, the right of women to be educated.” The submission also argued; “in the Applicant’s case it is his civil right to actively support human rights community groups and pursue a quality for Shia Muslims and education for all women that is a key complimentary protection claim. His membership of the minority Shia religion is also a relevant factor”; CB 148.

    30.In written submissions to the Tribunal dated 10 August 2017 the applicant stated that if he were returned to Pakistan he would ‘wish to resume’ his ‘active interest’ in human rights. He said that it was ‘his civil right to actively support human rights community groups and pursue equality for Shi’a muslims and education for all women that is a key complementary protection claim’ (CB 148, emphasis added). He asserted that if he ‘were returned to Pakistan he would face ongoing human rights abuses based on his Shi’a religion and his activism, as was the case in the past’ (CB150, emphasis added).

16. The substance of the applicant’s claim is that the Tribunal did not deal expressly with the combined claim of his being a human rights activist pursuing equality for Shias, in addition to education for women. As Counsel for the Minister points out with respect to the claim in the submissions of 10 August 2017, the applicant claimed that he would “resume his active interests in these areas, as was the case in the past”.

17. The Tribunal dealt specifically with the claims of being at risk, as a result of the applicant’s belief in human rights, in particular at paragraph [29] of the decision, where the Tribunal set out the following:

    29. The applicant’s claims are contained in the applicant’s application for a protection visa dated 19 July 201328 as follows:

    ‘Q.43. Why did you leave that country?

    I was facing a lot of difficulties and troubles due to my beliefs and human rights activities. Due to my struggles against violations of human rights, my life is not safe. Terrorists want to kill me. They attacked on me several times. Our police and out institutions have failed to provide me protection. Because of these reasons I left my country.’

    Q.44.    Have you experienced harm in that country?

    Yes. So many times, I was mentally tortured while security agencies refused to provide me protection. On 25 November 2010, while I was going to my college, some unknown persons belonging to a banned religious grouped named ‘Lashkar-e-Shangri’ came and kidnapped me in a car and tried to transfer me to tribal areas. Luckily, there was a checkpoint of army on the way and I got released. On 9 May 2013, when I was travelling with my father and younger brothers, we were made murderous attempt on our lives. Some unknown persons fired on us. My father filed a complaint at the police station. After that my father sent me to Lahore to stay there. On 12 May 2013, me and my friend was going on a car, again the terrorists tried to kill me and attacked me with heavy automatic weapons. In this incident I was very narrowly escaped, and our car was badly damaged. I went to the police station after the attack and told them about the incident and filed a complaint but in vain.

    Q.45.    What do you fear may happen to you if you go back to your country?

    I have a severe life threat in my country. Terrorists had already attacked on me and tried to kill me three times. They have tortured me mentally and physically assassinated by the terrorists of I go back to my country.

    Q.46.    Who do you think may harm/mistreat you if you go back?

    Those who do not believe and practice the principles of Human Rights and freedom of expression will kill me if I go back to my country. This include the Al Qaeda and Taliban linked group Lashkar-e-Jhangvi. This group kidnapped me and tired to kill me several times, many of my close relatives are already victim of this group.

    Q.47.   Why do you think this ill happen to you if you go back?

    As I have already been targeted three times at different locations, but no institution provided me any kind of help or protection. The terrorists and the religious groups are very strong and powerful. They are out of control. I relied and trusted many times on the authorities of my country, but they did nothing. Due to several reasons the authorities in my country do not want human rights defenders to work in the society. So, I am dead sure that I will be assassinated if I go back to my country.

    Q.48. Do you think the authorities of that country can and will protect you if you go back?

    No. No they cannot provide protection to me and other citizens. They are deeply influenced by so called politicians, religious groups and corrupt Mafia.’

18. The Tribunal also noted the applicant’s claims that he had been attacked and threatened by terrorists, as a result of human rights activities (see paragraph [14] of the decision). At paragraph [67] of the decision, the Tribunal noted his claim that if he were to return to Pakistan, he would suffer serious harm as a result of his religion and human rights activities. 

19. Importantly, the Tribunal gave extensive consideration to the applicant's claimed involvement in the organisation described as ‘EIMHRO’: see paragraph [75] to [90] of the decision. This was the only mechanism by which the applicant said that he pursued his human rights activities, however, the Tribunal did not accept that the organisation EIMHRO was an organisation involved in human rights, nor that the applicant was a member of it.  The Tribunal also noted that if it were wrong about the existence of the organisation, it nonetheless concluded that any activities the organisation may be involved with were not sufficiently significant to attract the attention of those the applicants said attacked him.  In substance, the Tribunal rejected the applicant's claims based upon his involvement in the human rights organisation at paragraphs [89] to [90] of the decision. 

20. As Counsel for the Minister points out, this is a significant finding against the applicant, given that his claims were that he would resume his activities (that he had carried out in the past). Having rejected that he had engaged in such activities in the past, the applicant’s claim in this regard must fail. 

21. As there were no evidence of the applicant’s involvement in human rights activity, save for his claimed involvement in EIMHRO, nor any evidence that he would pursue such activities through any other means, his claim in this respect failed.  This was an essential element of the claim he made with respect to activism, bringing to an end that part of the claim before the Tribunal. The Tribunal nonetheless went on to consider his claim based upon religion alone, but did not accept that he faced a real chance of serious harm in that respect either. 

22. The applicant argues that these issues were not specifically dealt with by the Tribunal when considering the claims under section 36(2)(aa) of the Migration Act 1958 (Cth), the complimentary protection criteria. However, the Tribunal noted its earlier findings in determining whether or not the complimentary protection provisions were satisfied, saying:

    147. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. However, for the reasons set out in the body of this decision, the Tribunal is not satisfied that the applicant was the victim of attacks and threats by members of the LeJ or other Sunni extremists as claimed by reason of being a member of the EIMHRO or as Shia Muslim. Further, the Tribunal is not satisfied that the applicant has received threatening calls from LeJ members as claimed. As such, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm.

23. What the Tribunal had not considered earlier were issues related to generalised violence, which then led to the Tribunal considering claims about generalised violence under the complimentary protections provisions: see paragraphs [148] to [157] of its decision. The Tribunal ultimately rejected the applicant's case in this regard. 

    CONCLUSION

24. The specific nature of the claim made by the applicant, which is relied upon for this ground, was that he would resume participation in human rights issues, as he had done in the past. In the past the activities had been through the organisation he named. Having rejected that there was any real chance that the applicant would be seriously harmed, by reason of his membership or involvement with the EIMHRO, if it existed, there was logically no case left for the Tribunal to consider, with respect to this part of the applicant’s claims. The applicant could not resume something that the Tribunal had found he had not done in the past. Nor does resuming any activity that is found does not lead to a real risk of harm sufficient.

1. It is entirely open to a Tribunal to rely upon findings with respect to convention grounds, when considering the complimentary protections, to the extent that those findings are findings of fact that go to the circumstances relevant to the complimentary protection claim. In this regard, the Tribunal did rely upon its previous findings, wherein it had rejected this part of the applicant’s claim. 

2. In the circumstances, I am not persuaded by the applicant that the Tribunal has failed to deal with the claim articulated by the applicant, and therefore this ground for judicial review failed. 

3. I dismiss the application. It is appropriate for costs to follow the event at the scale fee, and I so order.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       31 May 2021