ELD18 v Minister for Immigration

[2020] FCCA 335

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELD18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 335

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: ELD18

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

Second Respondent IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 446 of 2018

Judgment of: Judge Vasta

Hearing date: 10 February 2020

Date of Last Submission: 10 February 2020

Delivered at: Perth

Delivered on: 11 February 2020

REPRESENTATION

Counsel for the Applicant: F. Crowley

Solicitors for the Applicant: AUM Legal

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Applications filed 27 August 2018 and amended on 4 December 2018 are dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000. 

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 446 of 2018

ELD18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Applicant

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 31 July 2018, the Immigration Assessment Authority (“IAA”) affirmed the decision not to grant the Applicant, ELD18, a protection visa. On 27 August 2018, the Applicant filed an application in this Court asking it to review that decision.

2. The background is this: the Applicant was born in Lilownai village in the Khyber province in Pakistan.  He said that he is a Sunni Muslim of Pashtun ethnicity.  His family owns farming land but he is unmarried.  His mother and a number of his siblings still reside in the village. In 2008, his brother was killed by a Taliban bomb in the town of Mingora which is in the same province. 

3. The Applicant said that, from 2003 to 2010, he moved between his village and Islamabad. He often spent several months in winter in Islamabad and was working there as a builder. He said in early 2010, his father’s cousin was shot by the Taliban and the Applicant fears this was because the cousin led opposition to the Taliban in the village.

4. The Applicant claims that, in July 2010, while returning home to Lilownai from the hospital in Swat with his mother, he was stopped at a Taliban checkpoint at Charbagh. The Taliban had killed a man and hung his body up in a tree. They were stopping all the cars and pulling people out. The Applicant said that he was pulled out of his vehicle and told to look at the body. A member of the Taliban held his head to force him to look at the body. He did so briefly but he then pushed away the hand of the member of the Taliban. He said this made the man angry and the Taliban forced him into one of their cars and drove him away. He said that his hands were tied and his eyes were covered so he could not see where they were going. He said the journey took about three and half to four hours.

5. He said he was taken to a cave in the mountains where he was held for 25 days. He said he was fed little food during this time. He said he was deprived of sleep as the Taliban tied his hands and feet and suspended him about one or two feet above the ground. He said the Taliban tried to persuade him to join them. He said they lectured him morning and night while holding guns. They lectured him about Jihad, Sharia law and their view that the Government is made up of infidels. They spoke of killing police officers, teachers and government employees and also spoke of having a fairer allocation of resources that they would oversee if they were in power.

6. He said that the Taliban hung him by his feet to punish him when he refused to join them. He said he was sometimes made to stand on ice for up to an hour. He said there were other people being held in the cave. Some of these people agreed to join the Taliban and left the cave. He said they tried to give him a bomb in a bag which they wanted him to detonate in a market but he refused to do it.

7. He said he eventually escaped when one of the Taliban recognised a friend amongst those who were held in the cave. That person, one of the Taliban, shot the lock off the door. This allowed his friend and the Applicant to escape. The Applicant said that his feet were bloodied. He walked 14 or 24 hours back to his village. He said that he hid at a farm house about five kilometres from his family home. He said that the Taliban went to his family home looking for him on a number of occasions following his escape. He said that they told his mother that they would kill him.

8. The Applicant said that he moved to Islamabad and stayed with his cousin in a secure military cantonment. When his cousin got married and he had to leave, the Applicant said he tried to live in some other areas. But he said he was not able to do so because as a Pashtun, he was not welcome. He said in 2015 or 2016, following his departure, the Taliban went to his family’s farmhouse looking for him. He said they shot at the occupant, intending to kill the Applicant. He said that a gunfight between the Taliban and the police ensued and that one of the Taliban persons was, in fact, killed.

9. The Applicant said that if he returns to Pakistan he will be recaptured or killed by the Taliban because he refused to join them, and/or because of his political opposition to the Taliban, he will be persecuted. He said he fears harm as a member of a particular social group; that is, “people who refused to join the Taliban”.  He also fears that if he returns to Pakistan he will be perceived to be associated with the western culture and perceived that he has engaged in activities such as drinking alcohol, and would be seen as a bad Muslim. He says that he also fears that he will be harmed by terrorism in Pakistan. He said that the government is unable to protect him and that there is corruption in the government. 

10. The Applicant said that he would not be safe anywhere in Pakistan. The Applicant said he would have to show his Pakistan ID card wherever he went, and because of this, the Taliban would be able to find him as they have informants everywhere.

11. The IAA thoroughly assessed his claims. The IAA noted a number of variations in the Applicant’s account of his kidnapping and relevant events.  For example, the IAA noted that the Applicant indicated in his statement to his SHEV application that he was not given any food while detained by the Taliban, whilst in the interview, he said that he was given some food.

12. Also, in the entry interview, he said that he was not harmed while being detained by the Taliban. In his SHEV application, he indicated that he was not given food while detained, and his hands were tied and he was lectured and threatened by armed men, but referred to no other harm experienced while detained. But then in the interview, he described being forced to stand on ice and being suspended by his feet.

13. The IAA noted that in the SHEV application, he said that it took him 14 hours to walk home to his village after escaping. But in the SHEV interview he twice said that he walked for 24 hours.

14. He indicated, in his application, that he was taken by the Taliban after he angered a member of the Taliban by pushing his hand away as that person forced him to look at a body. But when asked to describe this incident in the interview, he said that the Taliban threw him in their car when he refused, or was unable to look at the body due the nausea he felt and or the sun in his eyes. He did not refer to a member of the Taliban touching him.

15. His description of his response to the Taliban’s efforts to persuade him to join him also are varied in that, in his application, he said that whilst detained, he had refused to take a bomb in a bag for the Taliban. During the interview, he also indicated that whilst other men held in the cave had agreed to join the Taliban, he and another one or two held in the cave had refused to join the Taliban. However, when asked in the interview at what point during his detention he told the Taliban that he would not join them or follow them, he said that he could not say directly to the Taliban that he would not follow them; he said “you had to keep quiet and not say anything”. The IAA noted that it was difficult to understand how the Applicant could have avoided responding directly in these circumstances as he described.

16. The IAA noted those inconsistencies and also noted that there was a conflict with the country information.  The information revealed that the Taliban’s recruitment strategy suggests that they generally attract willing recruits by offering competitive wages and economic opportunities, as well as exploiting feelings of resentment and marginalisation. They also appeal to those who wish a desire for status and a sense of belonging, especially amongst young men.  The Taliban reportedly drew recruits from among all persons in tribal areas.

17. Whilst there are reports that some Taliban groups have kidnapped children and forced them to become fighters or suicide bombers, those reports relate to the years before 2009. There were certainly are no reports in the country information that revealed that the Taliban underwent any of these activities in the province where the Applicant came from.

18. The IAA noted that there was scant evidence that people were being forced by militants to join them as a result of threats.  The IAA noted whilst kidnapping for ransom is sometimes used by militant groups, there was no suggestion that the kidnapping of the Applicant was to hold him for ransom. At paragraph 48, the IAA concluded that:

    There is no evidence before me to suggest that there was any motivation for the applicant’s detention and mistreatment for 25 days other than a desire to recruit him and, at least initially, the claimed anger of the Taliban man whose hand he brushed away. Considered as a whole, the information before me suggests that it is very unlikely that the applicant was held for 25 days and subject to the mistreatment described in order to recruit him in 2010 as claimed, regardless of the reason for his initial detention by the Taliban. Considering the concerns discussed relating to the applicant’s evidence about these events in light of the country information, I am not satisfied that the applicant was stopped, kidnapped, detained, threatened or harmed by the Taliban, or that he was pressured to join or otherwise support the Taliban. It follows that I do not accept that he escaped from the Taliban’s custody, or that he was pursued the Taliban for any reason. I do not accept that his mother or any other relative was visited by the Taliban looking for him, or that the Taliban went to a farm house looking for the applicant after his departure from Pakistan. I do not accept that the applicant is a member of the particular social group ‘people who refused to join the TTP’.

19. The IAA then looked at the fact that the Applicant would be returning as failed asylum seeker having spent time in a western country.  The IAA was not satisfied that the Applicant would face serious harm because of this fact.  The IAA concluded that the Applicant did not meet the refugee criteria.

20. The IAA then considered the complimentary protection criteria.  The IAA found that there were not substantial grounds for believing that as a consequence of the Applicant being returned from Australia to Pakistan that there would be a real risk that he would suffer significant harm. Therefore the IAA therefore affirmed the decision.

21. There is only one ground for this application.  That ground is as follows:

    The decision of the Immigration Assessment Authority (Authority), in falsifying the Applicant’s claims to capture by and escape from the Pakistani Taliban or Tehreek-e-Taliban (TTP) because, in the premises, he could not have walked for 14 hours, or up to 24 hours, was vitiated for illogicality or want of an intelligible justification constituting a constructive failure to exercise jurisdiction, or was otherwise vitiated by a denial of procedural fairness by not making a finding at all on that integer of the Applicant’s claim.

22. The background to this ground relies on what the IAA wrote in paragraph 37 of their reasons. At that time, the IAA was looking at the claim the Applicant had made about his escape. Paragraph 37 reads as follows:

    The applicant’s claims regarding his manner of escape are also somewhat implausible. It is surprising that a Taliban guard who wished to release a friend would do so by shooting the lock off the door, thereby also releasing the applicant, and risking attracting the attention of any other Taliban nearby. As a guard, it is not clear why he could not have unlocked the door. It is also difficult to accept that the applicant, after 25 days of detention and the mistreatment described, would have been able to walk either 14 hours or 24 hours to Lilownai, particularly given his claim that his feet were bloodied, notwithstanding the applicant’s claim that a villager gave him some clothes and shoes to wear. The applicant’s representative submits that the applicant worked as a builder and farmer in a mountainous area. He undertook hard physical work and did a lot walking in mountainous areas. He submits that given these characteristics, and as the applicant was running for his life, it is plausible that he could have walked for 14 hours. I note that the applicant stated twice during the SHEV interview that he walked for 24 hours following his escape. Whether the applicant’s claim is that he walked for 14 or 24 hours after his escape, I find it difficult to accept that he would have been able to walk for 14 hours following the treatment he claims to have experienced while detained, regardless of his physical condition prior to his detention.

23. The submission is made that the IAA has disbelieved this claim because it did not accept that the Applicant would have been able to walk for 14 hours.  The Applicant submits that the IAA has found that the Applicant, “could not have walked for 14 hours”.

24. The Applicant submits that such a conclusion does not follow.  The Applicant has said that there needs to be some factual foundation as to how long an average person in the position of the Applicant might be able to walk.  The Applicant submits that what was missing was some medical or physiological information that went to that aspect.  The Applicant submits that general knowledge is insufficient a basis to have been able to conclude that the Applicant “could not have walked for 14 hours”. 

25. The Applicant referred me to a number of authorities that spoke of an error occurring when a finding of fact is made that has no foundation in the evidence before it.  The Applicant submits that a finding that the Applicant could not have walked for 14 hours was such an error.  The Applicant has given examples of persons who have performed extraordinary feats of endurance so as to make the point that walking for 14 hours is not beyond the realms of possibility or even probability. 

26. The Applicant submits that this error was a vital link in the chain that allowed the IAA to come to the conclusion that it came to at paragraph 48, which I have already read into the record.  I do have some doubts about that, given the amount of information that the IAA used to come to its conclusions at paragraph 48, but for the purposes of looking at the merits of this ground, I am proceeding at this point as if that statement has some validity. 

27. There may possibly be some merit to the arguments advanced by the Applicant if it were that the IAA had actually made a finding that the Applicant “could not have walked for 14 hours”.  But the IAA made no such finding.  If one carefully looks at what the IAA has said at paragraph 37 of its reasons, it has said that the claims regarding the manner of escape are somewhat implausible.  The IAA described the manner of escape.  The IAA then said “It is also difficult to accept…” And later on in the paragraph also says “I find it difficult to accept that the he would have been able to walk for 14 hours”

28. There has been no finding that the Applicant “could not have walked for 14 hours”.  It must be remembered that it is for the Applicant to satisfy the IAA of the claims that the Applicant makes.  What the IAA is saying is the Applicant has not met that burden.  It is this “difficulty to accept”, the claims of the Applicant, that have allowed the finding in paragraph 48.  It is not any specific positive findings on any particular matters that have formed the basis for the findings in paragraph 48.

29. In any event, it seems to me that there was plenty of other aspects relied upon by the IAA in coming to their conclusion.  If there were any merit to this ground, I have grave doubts as to whether it could rise to the level of a “material” error.

30. Having come to that conclusion, I find that there has been no jurisdictional error illustrated. 

31. The application is dismissed with costs.

32. I will change the First Respondent’s name.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  19 February 2020