FKV18 v Minister for Home Affairs
[2019] FCCA 1572
•28 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FKV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1572 |
| Catchwords: MIGRATION – Application for protection visa – inconsistencies in claims made by applicant – adverse credibility findings – country information at odds with claims made by applicant – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36(2), 476(1) |
| Cases cited: Prasad v MJEA (1985) 5 FCR 155 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicant: | FKV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1057 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 28 May 2019 |
| Date of Last Submission: | 28 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 28 May 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the First Respondent: | Ms Rayment, Solicitor of Sparke Helmore |
ORDERS
That the amended application for review filed on 4 February 2019 be dismissed.
That the applicant pay the first respondent’s costs of and incidental to the application for review and the amended application for review fixed in the amount of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1057 of 2018
| FKV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan. He arrived in Australia as the holder of a Student (Class TU) (Subclass 572) Visa on 28 January 2013. On 6 March 2013 the applicant applied for a Protection Visa (Class XA) (Subclass 866). On 22 October 2015, a delegate of the Minister refused to grant to the applicant the protection visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations.
On 20 November 2015, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 28 March 2018, the Tribunal invited the applicant to attend the hearing before it. That hearing proceeded on 6 June 2018. It was noted that the applicant provided the Tribunal with a lengthy submission and evidence in support of the review application.
On 20 September 2018, the Tribunal affirmed the decision of the delegate not to grant to the applicant the visa.
On 12 October 2018, the applicant made application for review of the decision of the Tribunal pursuant to the provisions of section 476(1) of the Migration Act1958 (Cth)(‘the Act’).
At [5] and [6] of the reasons of the Tribunal, it was noted that in a statement provided by the applicant with his application, the applicant had stated that his Shia Hazara ancestors had migrated to the Punjab from Afghanistan many years ago as a result of political unrest and that after the killing of Osama bin Laden, militant Sunni groups had published an open letter addressed to Shias in Pakistan stating that religious scholars had issued a fatwa declaring Shias as infidels, and further stating that there would be a Jihad against them as a matter of religious duty. The applicant stated that after a local scholar had also issued a fatwa to similar effect there had been a massacre in the applicant’s area in which many of his close relatives had been killed. The applicant stated that his family had asked him to leave Pakistan “… to protect the next generation”.
The same local scholar who had allegedly called for the fatwa was alleged by the applicant to have asked his followers to kill the applicant. It was said by the applicant that his family had fled to hiding in Karachi. The applicant claimed that many of his relatives, and friends and neighbours had been attacked and burnt alive after he had left Pakistan. That was the reason for his having sought protection in Australia.
At [14] – [18] inclusive of the Tribunal reasons, the criteria for the grant of a protection visa were relevantly set out. At [19] of the Tribunal reasons it was recorded that a decision-maker was not required to make the applicant’s case out for him or her. [1]
[1] Prasad v MJEA (1985) 5 FCR 155 at [169-170].
At [21] of the Tribunal reasons, it was recorded that the applicant’s central claims were essentially that if he returned to Pakistan he would be killed by Sunni extremist groups (LEJ or SSP) because he was a Hazara and Shia, and also because he had been involved as a member of the TJP in rallying people to support Shia rights.
At [23] of its reasons, the Tribunal recorded that it did not find the applicant to be a credible or truthful witness concerning his experiences in Pakistan, the Tribunal concluding that the decision under review ought to be affirmed.
When affirming the delegate’s decision, it was noted that the Tribunal had had regard to inconsistencies in the applicant’s evidence regarding key aspects of his claims in the course of the protection visa application process, as well as the implausibility of some aspects of the applicant’s claims. As to inconsistencies in respect of the applicant’s claimed fear of harm being suffered by him at the hands of militant Sunni groups LEJ or SSP, it was recorded that in the applicant’s initial statement of claims he had made no suggestion that he had personally been harmed by any of the alleged anti-Shia militant groups, referring in general terms to sectarian violence against Shias in Pakistan which he claimed had been exacerbated by fatwas issued after the death of Osama bin Laden.
However, it was noted that at the hearing the applicant had introduced a range of new claims including that SSP or LEJ militants had tortured him, hit him with a car in 2012, and threatened to kill him because he was rallying people to the Shia cause. The Tribunal, at [25] of its reasons, also found inconsistencies between the applicant’s evidence to the Department and the Tribunal about the motivation for, and the nature of, his involvement in Shia activities.
The applicant initially claimed that he became involved in organising volunteers to guard their village at night after an alleged massacre. However, in his evidence to the Tribunal, it was recorded at [26] of the reasons of the Tribunal that in 2010 the applicant was already involved with the Shia mosque in his village participating in religious education meetings, and that after the fatwa against Shias had been issued in 2011 he went to join the TJP at their head office in Daska, which was some 20 kilometres from his village.
He described the TJP as being an organisation providing Shia religious education and advising Shia people as to how they could defend their rights. At the hearing the applicant confirmed that he did not do anything else in his role with the TJP except talk about religion, making no mention of the alleged massacre, or of organising volunteers to defend the village. The Tribunal found his answers to further questions addressed to the applicant as to the question of inconsistencies to be “opportunistic”.
At [27] of its reasons the Tribunal found the applicant’s overall evidence to be vague and ill-informed. When asked about the situation of the TJP in 2011, that being the time when the applicant claimed he had joined the TJP and was actively involved in it, the applicant was unaware that it had again been banned. The Tribunal noted that it was implausible that the applicant would not know such a basic fact had he been involved to the extent to which he alleged he was.
At [28] of its reasons, the Tribunal indicated that it had had regard to the document purporting to be the application to join the movement at his village mosque in December 2010, but in the light of Department of Foreign Affairs and Trade (‘DFAT’) advice regarding the prevalence of document fraud in Pakistan, the Tribunal did not attach weight to that document, nor to a letter from the mosque organisation stating that a fatwa had been issued against the applicant because of his religious activities.
At [29] of its reasons the Tribunal found that it was implausible that the SSP or LEJ had pursued and tortured the applicant, or otherwise threatened him, or had attempted to run him over with a car. The Tribunal expressed scepticism about the applicant’s claims that he had been tortured on multiple occasions, asking the applicant why the LEJ or SSP had not just killed him.
At [30] of its reasons, the Tribunal recorded that it had asked the applicant how he knew that it was LEJ militants who had tried to run him down, given that the attack had occurred from behind and at night. The applicant claimed that after the attack the LEJ had delivered a letter to his family warning that the attempt on his life was just an example of what could happen to him. The applicant did not have a copy of the letter but claimed that his father reported the incident to the local police. The Tribunal did not accept that the events as set out in a subsequent complaint statement to police had occurred.
As to the applicant claiming to be in fear of harm by reason of his being a Hazara and a Shia, the Tribunal found that there was no persuasive evidence before the Tribunal, based on country information from DFAT, that such form of violence would be faced by the applicant personally. It was noted that there was a general consensus expressed in country information that Hazaras in Pakistan were not targeted because of their ethnicity, but rather because they were Shia and identifiable as Shia because of their ethnicity.
Country information provided by DFAT suggested that there had been a substantial reduction in the level of generalised and sectarian violence in Pakistan since the government launched a counter-terrorism military operation in June 2014. It was recorded that DFAT assessed the risk of generalised and sectarian violence for most Shias in Pakistan as low, and particularly low in the applicant’s home province of Punjab.
The Tribunal was not satisfied that the applicant faced a greater risk of harm for reasons of his Shia faith than did other members of the Shia Muslim community in Pakistan. The Tribunal was not satisfied that the general security situation in Pakistan would expose the applicant to a real chance of persecution for a convention reason.
At [35] of its reasons, it was recorded by the Tribunal that, considered together, the multiple concerns of the Tribunal expressed in its reasons led the Tribunal to conclude that the applicant had not been a truthful or credible witness about his experiences in Pakistan, or otherwise for the reasons that he claimed to fear harm there. The Tribunal found that his evidence could not be relied upon. It made adverse findings against the applicant based on a lack of credibility on the part of the applicant, as it was entitled to do.
At [36] of its reasons, the Tribunal noted that having considered all of the applicant’s claims, both individually and cumulatively, as well as having considered all of the evidence before it, the Tribunal was not satisfied that there was a real chance that on his return to Pakistan the applicant would suffer serious harm amounting to persecution by reason of his Hazara ethnicity, his Shia Muslim religion or his claimed political opinion against the Taliban.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason should he be returned to Pakistan then, or in the reasonably foreseeable future. The applicant, also, was not found to satisfy the complementary protection criteria for the same reasons as advanced in respect of his not being owed refugee obligations. For those reasons, the Tribunal found that the applicant did not satisfy the protection criteria as set out in section 36(2)(a) or the complementary protection criteria as set out in section 36(2)(aa) of the Act.
It cannot be said that the Tribunal failed to make any obvious enquiry about a critical fact.[2]
[2] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25-27] per French CJ,
It cannot be said that no other rational or logical decision-maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
No jurisdictional error has been established on the part of the Tribunal.
The application for review is without merit and is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 21 June 2019
Gummow, Hayne, Crennan, Kiefel and Bell JJ.
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