EYV18 v Minister for Immigration
[2020] FCCA 1450
•4 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EYV18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1450 |
| Catchwords: MIGRATION –Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – applicant’s fear found not to be well founded – whether the applicant was denied a fair hearing considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZVYG v Minister for Immigration [2017] FCA 955 |
| Applicant: | EYV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2708 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2020 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Mr H. Gao of Australian Government Solicitor |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 24 September 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2708 of 2018
| EYV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 10 September 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 26 May 2020.
The applicant is a Sunni Muslim man of Pashtun ethnicity from a named town in the Swat region in the province of Khyber Pakhtunkhwa, Pakistan. On 18 July 2013, he arrived in Australia as the holder of a student visa (TU-573), and on 9 October 2014, he lodged an application for the protection visa. On 21 January 2016, the delegate refused to grant the protection visa as they had concerns with some of the applicant’s claims, noted that his family continue to reside in their home safely, and found that the applicant was not of interest to the Taliban.[1]
[1] Bundle of Relevant Documents (RD) 1-110, 168-182
On 2 February 2016, the applicant via his migration agent applied to the Tribunal for review of the delegate’s decision.[2] On 7 August 2018, the applicant and his representative attended a hearing before the Tribunal.[3] On 14 August 2018, the applicant filed post-hearing submissions. On 10 September 2018, the Tribunal affirmed the delegate’s decision.[4]
[2] RD 185-186
[3] RD 238-239
[4] RD 271-278
Protection claims
In summary, the applicant’s claims for protection are that:
a)his family home was attacked by the Taliban in February 2009, due to his family’s support of the Awami National Party (ANP), and his father’s leg was amputated as a consequence of injury in the attack; and
b)he showed the Village Defence Committee (VDC) and Pakistani Army where some Taliban members resided (namely, those who had attacked his family home). The VDC and the Pakistani Army then destroyed three of the Taliban members’ houses using explosives. As a result, the applicant received a letter in September 2012 from the Taliban threatening revenge.
Tribunal decision
The Tribunal considered the applicant’s claims to the delegate and the Tribunal.[5] The Tribunal accepted that the applicant’s father played a more active role in the ANP when he was younger, and the applicant’s father was injured and lost a leg, and his uncle was killed, in the February 2009 attack.[6]
[5] RD 272-275 at [6]-[29]
[6] RD 276 at [31]
In assessing the relevance of these facts, the Tribunal noted that the applicant’s family, including his father, have continued to reside in the same house without having suffered any further significant harm, and that his wife and children lead normal lives in Swat.[7]
[7] RD 276 at [31]
The Tribunal had issues with other aspects of the applicant’s evidence:
a)the Tribunal considered the applicant’s evidence regarding how his cousins came to recognise who attacked his father at home to be “vague and implausible”;[8]
b)the Tribunal found the applicant’s evidence about the role entrusted to him by the authorities was “far-fetched”, and considered that the applicant’s claim that he and his family were held responsible was inconsistent with independent evidence that the VDCs are the principal targets of the Taliban in Swat;[9]
c)the applicant gave contradictory evidence about his ANP involvement, which the Tribunal considered to be exaggerated, and about changing address to avoid detection in Pakistan;[10]
d)the Tribunal rejected the purported Taliban letter as not genuine;[11] and
e)the Tribunal considered that the applicant’s evidence of ANP involvement was exaggerated, and inconsistent with the claim that he tried to keep a low profile to avoid persecution.[12]
[8] RD 274 at [21], 276 at [33]
[9] RD 274 at [22]
[10] RD 274-275 at [23], [27]
[11] RD 276 at [32]-[33]
[12] RD 276 at [32]
The applicant acknowledged that the Pakistani government and armed forces regained control of his province after 2009, and particularly from 2012 onwards, and the Tribunal put to the applicant that there was strong evidence of the availability of effective state protection.[13]
[13] RD 274-275 at [19], [24]-[25]
Further, the Tribunal found the applicant did not have sufficient common characteristics with the recent targeted killing of the ANP leader and nephew in Peshawar to give rise to a real chance of harm.[14]
[14] RD 276 at [34]
The Tribunal found that there was “overwhelming evidence of the availability of effective state protection”.[15] The Tribunal concluded that the applicant was not a refugee or owed complementary protection obligations.[16]
[15] RD 277 at [35]
[16] RD 277 at [36], [41]
These proceedings began with a show cause application filed on 24 September 2018. There is one particularised ground in that application:
1. The AAT fell into jurisdictional error in failing to give the applicant a fair hearing in accordance with s425 of the Migration Act 1958 (Cth).
Particulars
(a) An adverse finding was not put to the applicant for comment and therefore, the AAT failed to provide the applicant an opportunity to be heard.
(i) The delegate accepted that the applicant “passed on information regarding suspected Taliban (page 5 and 11);
(ii) The AAT found that the applicant’s “evidence about his cousins being able to make a list of the responsible Taliban members ….somewhat vague and ultimately somewhat implausible” ([33] on page 6); and
(b) A finding was not put to the applicant for comment and it fails to make a relevant consideration or alternately the AAT asked itself the wrong question because the claimed threat against the applicant’s life was made in Ningolai and not Peshawar.
(i) In post-hearing submissions dated 7 September 2018, the applicant provided an independent news report of an ANP leader/July 2018 election candidate and his nephew having been shot dead by suspected Taliban members on 6 September 2018 ([29] on page 5);
(ii) The AAT accepted targeted killings occur from time to time ([34] on page 6);
(iii) The AAT did not accept “on the evidence before me that the applicant has sufficient characteristics in common with such targeted persons such as to give rise to his facing real chance of serious harm in Peshawar” ([34] on page 6);
(errors in original)
The applicant continues to rely upon that application. The applicant was, at that time, legally represented. The applicant also relies upon a short affidavit by his former solicitor made on 20 September 2018 and attaching the Tribunal decision. I also received a second affidavit by the applicant’s solicitor made on 29 March 2019 attaching a transcript of the hearing conducted by the Tribunal. The applicant’s solicitors withdrew from the record by notice filed on 28 January 2020.
I also received the Minister’s book of Relevant
Documents filed on 13 December 2018 and a Supplementary Court Book filed on 26 May 2020. The Supplementary Court Book[17] contains documents relating to a purported non-disclosure certificate. Only the Minister filed pre-hearing written submissions in accordance with my procedural orders in this matter. I invited oral submissions from the applicant this morning.
[17] SCB
He expressed general dissatisfaction with this decision of the Tribunal. He also complained that the Tribunal had rejected a letter he relied upon as not genuine, when it was, in fact, real. The applicant also expressed concern that the Tribunal did not accept that he was a member of the National Party of Pakistan.
The Minister’s oral submissions identified two relevant letters. The first is a purported letter from the Taliban, identified at [13] of the Tribunal’s reasons, and dealt with at [33]. As noted by the applicant, the Tribunal regarded that purported Taliban letter as not genuine. Having regard to the Tribunal’s reasons, I find that the conclusion reached by the Tribunal was open to it. The other letter concerned the applicant’s claimed political activities for the Pakistani ANP. The applicant’s evidence in this regard is described at [23] of the Tribunal’s reasons. At [31] the Tribunal accepted that the applicant and his father are members of the ANP.
At [32] the Tribunal found that the ANP letter was not factual. I interpret that as meaning that, while the Tribunal did not find that the ANP letter was a fabrication, it found that the contents of the letter were not reliable. The Tribunal found that, although the applicant is a member of the ANP, he does not have a political profile that would put him at serious risk of harm. Again, having regard to the Tribunal’s reasons, that conclusion was open to it.
The Minister’s submissions deal with the grounds advanced on behalf of the applicant, and also deal with the issue of a purported non-disclosure certificate. I agree with those submissions.
First particular - the Tribunal did not fail to put an adverse finding to the applicant
The applicant claims that he was not put on notice of an issue in the review, namely that the Tribunal may not accept that he passed on information regarding the Taliban members who attacked his father to the VDC. Contrary to this assertion, the Tribunal decision record and the transcript annexed to the affidavit of Michaela Byers dated 29 March 2019[18] show that the Tribunal put questions to the applicant regarding the plausibility of these claims. For example, the Tribunal asked the applicant questions about if his cousins, who were responsible for gathering the information about the Taliban, were interviewed by the authorities[19] and whether people in general, and the applicant in particular, were actually afraid to denounce the Taliban given it would have been obvious that the Taliban were behind the attacks.[20] The Tribunal also put concerns to him that nobody appeared to be trying to harm him.[21]
[18] MB affidavit
[19] RD 274 at [22], MB affidavit from page 9 line 33 to page 11 line 17
[20] MB affidavit from page 11 line 24 to page 12 line 7
[21] RD 275 at [25]-[27], MB affidavit from page 12 line 9 to page 13 line 17
The Tribunal is not required to put to an applicant that they may not be accepted as a witness of truth.[22] However, where there are specific aspects of an applicant's account that may be important to the decision and may be open to doubt, the “Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”.[23] The Tribunal’s reasons and the transcript of the hearing demonstrate that this was done. The applicant was put on notice of the broad concerns the Tribunal had about his claims, which centred around the fact that his family had not been harmed despite remaining in the same province,[24] and was afforded an opportunity to respond to these concerns. In those circumstances, it is plain that the applicant was properly afforded the opportunity to address a dispositive issue in the review.
[22] SZBEL v Minister for Immigration (SZBEL) (2006) 228 CLR 152
[23] SZBEL at [47]
[24] RD 276 at [31]-[34]
Second particular - there was no error in the Tribunal’s assessment of post-hearing submissions
The second particular fails to establish error for two reasons.
First, the applicant’s contention that the Tribunal asked itself the wrong question “because the claimed threat…was made in [the applicant’s home town] and not Peshawar” is misplaced. The news report upon which the applicant relies in support of the second particular[25] refers to events occurring in Peshawar (where he studied and lived for a period), not his home town. It was therefore reasonably open to the Tribunal to consider the news report on that basis, and to consider, as it did, whether the applicant could also safely return to Peshawar. The Tribunal made a separate finding that the applicant was able to continue to reside in his home town without facing a real chance of serious harm there.[26]
[25] RD 264, 275 at [29]
[26] RD 276 at [32]
Secondly, the assertion that the Tribunal failed to invite further comment on post-hearing submissions (and whether the applicant had “sufficient characteristics in common” with a targeted person) must be rejected:
a)the Tribunal’s decision cannot be characterised as one based on an unknown or unexpected issue which it had failed to disclose. It was the applicant who advanced the relevant material, and so this case is distinguishable from cases where the review applicant was unaware of an issue that had arisen;[27]
b)disclosure of whether the applicant shared similar features with the ANP leader and his nephew contained in the news report would have resulted in the Tribunal providing a running commentary on its thought process, which s.425(1) of the Migration Act 1958 (Cth) (Migration Act) does not require. Further, the obligation to invite comment on information does not extend to the Tribunal’s “subjective appraisals, thought processes or determinations”;[28] and
c)further, the news report provides information about the targeted killing of an ANP leader and his nephew in Peshawar. The broader issue of targeted killings was before both the delegate and the Tribunal, and so this information cannot properly be characterised as a new issue; rather, it is a sub-issue within, or further particulars of, an existing issue.[29]
[27] SZVYG v Minister for Immigration [2017] FCA 955 at [38], [45]-[48]
[28] SZVYG at [39], [45]-[48]; SZBEL at [48]; VAF v Minister for Immigration (2004) 206 ALR 471 at [24]
[29] SZVYG at [40], [45]-[48]
Documents subject to a certificate issued under s.438 (s.438 certificate)
The Minister notes and I accept that the Tribunal may have breached its procedural fairness obligation by failing to disclose the fact of the s.438 certificate to the applicant.[30] This does not, however, amount to jurisdictional error because any such breach was not material to the Tribunal’s decision.[31]
[30] RD 184
[31] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3 (SZMTA) per Bell, Gageler and Keane JJ at [2], [27], [29], [38]
The material covered by the s.438 certificate is a disclosure decision checklist and identification test form.[32] The applicant’s identity was not in issue before the Tribunal, and this material could not reasonably have had any bearing on the Tribunal’s decision. In these circumstances, the breach is not material as it did not deprive the applicant of a successful outcome.[33] At most, the material was only of passing contextual relevance and was not taken into consideration by the Tribunal.[34]
[32] SCB
[33] SZMTA at [2], [38]
[34] see AVO15 v Minister for Immigration [2017] FCA 566 at [87]-[88]
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $6,000. The applicant did not wish to be heard on costs.
I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 June 2020
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