EJB18 v Minister for Immigration and Anor

[2020] FCCA 3170

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJB18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3170

Catchwords:
MIGRATION – Protection (class XA) visa – section 36(2)(aa) of the Migration Act 1958 (Cth) – interpretation of necessary and foreseeable consequence – whether harm arising from choosing to enforce legal land rights is a necessary and foreseeable consequence of being returned to country of citizenship – application dismissed.

Cases cited:

EJC18 & AnorvMinister for Immigration & Anor [2020] FCCA 3171

Applicant: EJB18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2560 of 2018

Judgment of: Judge Mercuri

Hearing date: 15 July 2020

Date of Last Submission: 15 July 2020

Delivered at: Melbourne

Delivered on: 27 November 2020

REPRESENTATION

Counsel for the applicants: Mr Aleksov

Solicitors for the applicants: Carina Ford Immigration Lawyers

Counsel for the respondents: Mr Kaplan

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed on 24 August 2018 and as amended on 24 June 2020 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2560 of 2018

EJB18

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons are to be read in conjunction with the reasons for judgment delivered today in EJC18 & AnorvMinister for Immigration & Anor [2020] FCCA 3171 (“EJC18”).

2. The applicant in this proceeding is the mother of the first applicant in EJC18.

3. The applicant’s written submission in relation to both matters were in identical terms.  As noted at paragraph 1 of those written submissions:

   The applicants in these two cases are a family unit.  Their cases were formally distinct through the visa application and Tribunal review, but their reviews were determined on the same day, by the same member, seven minutes apart, with relevantly identical reasoning.  Their case on judicial review attacks the decisions in the same way.[1]

   [1] Applicant’s written submissions filed 24 June 2020.

Background

1. The applicant is a citizen of Pakistan who applied for a protection visa on 31 October 2013.  The applicant claimed to fear persecution by reason of membership of the particular social group comprising ‘land-owners of valuable, underdeveloped land plots in Pakistan who ae susceptible to extortion and land grabbing’.[2]

   [2] Court book pages 12-17.

2. A delegate of the first respondent (“the delegate”) refused the applicant’s application for a protection visa on 6 May 2015.[3]

   [3] Court book pages 439-460.

3. The applicant then applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision on 28 May 2015.[4]

   [4] Court book pages 461-462.

4. The applicant appeared before the Tribunal on three occasions, together with her son, who is the applicant in EJC18.[5]

   [5] Court book page 856.

5. On 7 August 2018, the Tribunal affirmed the delegate’s decision.[6]

   [6] Court book pages 855-872.

The Tribunal’s reasons

1. The Tribunal set out the history to the proceedings before it and noted that the applicant was assisted at the various hearings by an interpreter and her migration representative.[7] 

   [7] Court book page 856.

2. The Tribunal noted the applicant’s evidence as to her mental health, accepted the applicant was a vulnerable applicant, and appropriate accommodations were made accordingly.[8] 

   [8] Court book page 856.

3. The Tribunal then set out the relevant law and then the applicant’s claims.  At [27] of the Tribunal’s decision record, the member noted that the applicant’s claims that she:

   fear[ed] returning to Pakistan for the reason that her mere presence will raise the concerns of this land grabber who will take action to prevent her from pursuing opportunities to reclaim the land.[9]

   [9] Court book page 859 at paragraph 27.

4. The Tribunal set out the applicant’s evidence in relation to:

   a)her family;

   b)the land they owned in Pakistan; and

   c)the history of that land being taken by ‘land grabbers’ since the death of her husband.

5. The Tribunal further noted the applicant’s fear of returning to Pakistan was related to a dispute over the ownership of a plot of land known as ‘Cosmic Town’, which has involved various court proceedings, complaints to the police and related investigations.  In particular, the Tribunal noted the applicant’s stated fear from a ‘Mr J’ who had laid claim to the ‘Cosmic Town’ land and who was a very powerful and influential person who could cause harm to the applicant with impunity.[10]

   [10] Court book pages 859-866.

6. The Tribunal accepted that the applicant feared harm from ‘Mr J’ but found that there was not the requisite refugee nexus so as to satisfy the criteria for a refugee claim.[11]

   [11] Court book pages 868-870.

7. The Tribunal also considered the complementary protection obligations owed by Australia but was not satisfied that those requirements were met.[12]

   [12] Court book pages 870-872.

Grounds of review

1. The grounds of review raised in this matter are identical to those raised in EJC18. 

2. For the reasons set out in EJC18, none of the grounds of review are made out. 

3. Consequently, this application for review is dismissed, with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:    

Date:     27 November 2020