FMN17 (BY His Litigation Guardian) v Minister for Immigration

[2018] FCCA 3499

FEDERAL CIRCUIT COURT OF AUSTRALIA

FMN17 (BY HIS LITIGATION GUARDIAN) v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3499

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (subclass 866) visa – whether the Tribunal was required to consider the best interests of the child under international law – whether the adverse findings of the Tribunal were open to it – whether the Tribunal complied with its obligations of procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

Applicant: FMN17
(BY HIS LITIGATION GUARDIAN)

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 698 of 2017

Judgment of: Judge Street

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Perth

Delivered on: 28 November 2018

REPRESENTATION

The Litigation Guardian appeared on behalf of the Applicant.

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2. The application is dismissed.

3. The litigation guardian pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 28 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 698 of 2017

FMN17 BY HIS LITIGATION GUARDIAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 November 2017 affirming a decision of the delegate not to grant the applicant a Protection (subclass 866) visa.

2. The applicant is a child and was found to be a citizen of Pakistan. The applicant’s father was appointed litigation guardian for the purpose of these proceedings. The applicant’s father arrived from Pakistan on 27 June 2008 on an offshore higher education sector visa, due to expire on 24 July 2009. On 27 May 2010, the applicant’s mother and her sibling were granted a visa as dependants of the applicant father. It was not until 15 April 2013 that applications for protection visas were submitted by the child applicant’s family. The child is now four years of age.

3. The claims made on behalf of the child applicant are that her mother and father entered into a ‘love marriage’ and her uncles had threatened them as her mother was to marry her cousin. It is asserted that the applicant’s mother and father would be taken away from her and may be kidnapped by her uncles. It is contended that the Pakistani authorities would be used against the applicant and her family.

4. On 29 April 2016, the delegate found the applicant failed to meet the criteria for the grant of a Protection visa.

5. The applicant applied for review on 10 May 2016. By letter dated 14 February 2017, the applicant was invited to attend a hearing on 19 April 2017. The applicant completed a response to hearing invitation in that regard identifying that there was no witness that was required to attend the hearing. The hearing record for 19 April 2017 identifies the attendance of the applicant’s parents to give evidence and present arguments on her behalf. There was a further hearing which the parents were invited to attend on behalf of the applicant, which took place on 7 June 2017. That hearing was again one at which the applicant’s parents attended to give evidence and present arguments.

6. The Tribunal’s reasons identify the background to the visa application and summarise the relevant law. The Tribunal’s reasons summarised the migration history of the applicant’s parents and the birth of the applicant. The Tribunal accepted that the applicant belongs to the Islamic ethnic group and that her religion is Sunni Muslim. The Tribunal summarised the claims and submissions advanced on behalf of the applicant, including the assertion of the parents being at risk of being subject to honour killings.

7. The Tribunal also summarised what occurred at the second hearing. The Tribunal noted in that regard that no other evidence, including from other family members, has been advanced to the Tribunal and nor was the Tribunal requested to take evidence from other witnesses, such as the mother’s other sisters, who potentially might have corroborated the threats.

8. The Tribunal accepted that the marriage of the parents was a love marriage. The Tribunal identified concern in respect of the alleged international telephone calls and threats advanced in that regard and that the parents must have appreciated the significance of phone evidence for the purpose of supporting their daughter’s claims. The Tribunal noted that no request was received by the Tribunal to arrange telephone contact with any witness for either hearing date and in particular, from the person from whom calls were allegedly made. The Tribunal noted that at the end of the first day of the hearing, the Tribunal raised the issue of the non-attendance of the witness, of the person who was allegedly making phone calls, and identified the significance of that potential person.

9. The Tribunal expressly took into account that it would have been reasonable to anticipate that that particular person would be in a position to provide evidence to the Tribunal by telephone in a relatively secure environment had she been requested to do so and that this could have occurred without the knowledge of her family members. The Tribunal noted that this did not occur and that the reasons for her absence were not explained to the Tribunal.

10. The Tribunal did not accept that the employment prospects of the father are poor. The Tribunal identified credibility concerns in relation to the evidence of both parents and, in particular, concerns in respect of alleged telephone calls from the particular person who had not been called and found the evidence of the parents in this regard not to be convincing and took into account the failure to call the particular person. In those circumstances, the Tribunal placed minimal weight on the evidence of the alleged calls between the particular person and the applicant’s mother.

11. The Tribunal found there was insufficient evidence before the Tribunal to find the applicant’s maternal uncle will pick up, snatch and/or kill the applicant’s father, mother or the applicant herself. The Tribunal found the applicant did not have a well-founded fear of persecution. The Tribunal found that whilst the applicant was a member of an identified particular social group, there is not a real chance that if she is returned to the receiving country of Pakistan, she would be persecuted for reasons of membership of particular social groups or for any other reason within s 5J(1) of the Act. The Tribunal found the applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention.

12. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Pakistan, there is a real risk that she will suffer significant harm.

13. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and the alternative criterion under s 36(2)(aa) of the Act. The Tribunal found the applicant is not a member of a family unit or a person who satisfies the requirements under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 14 December 2017. On 19 April 2018, orders were made giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant’s father, being the litigation guardian, the nature of the hearing and the litigation guardian confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the litigation guardian maintained that the delegate had accepted that the applicant was entitled to a protection visa. There is an obvious typographical error in the delegate’s reasons in paragraph 45. There are no other examples of any such error in the delegate’s reasons. It is apparent from the surrounding context at paragraph 44 and the following paragraphs that follow after 45 that there was an omission of the word no in paragraph 45. The proposition that there was a favourable finding by the delegate in support of the applicant is misconceived.

4. The litigation guardian also contended from the bar table that there was a request at the second hearing to adduce evidence from the applicant’s aunt. The Tribunal’s reasons are squarely inconsistent with any such proposition. No evidence has been adduced to support the contention advanced by the litigation guardian. On the evidence before the Court, the Tribunal’s reasons lead to the conclusion that there was no request for the taking of evidence from the applicant’s aunt and, indeed, that was a significant factor in the reasoning of the Tribunal dealing with the credibility of the claims advanced in respect of the alleged telephone calls. Nothing said by the litigation guardian from the bar table identified any jurisdictional error.

5. The Court notes that from the bar table, the litigation guardian indicated that he wished to adduce further material in relation to honour killings. The assertion of honour killings was a claim that the Tribunal considered and made adverse findings upon for the reasons given by the Tribunal. This Court is not in a position to make fresh findings of fact in respect to the applicant’s claims, and it is for this reason that the Court did not accept into evidence the material which the litigation guardian apparently wished to advance in relation to more recent honour killings. Further this Court have any power to determine the matter on compassionate or discretionary grounds.

The grounds

1. The grounds in the application are as follows:

   1. Decision by the Honourable second respondent is a clear breach of number of obligations under the International Law, including

   • Article 3(2) of the (Convention of the Rights of the Child] (in all actions concerning children… The best interest of the child shall be primary consideration);

   • Article 22 of the [Convention of the Rights of the Child] (right of child asylum seekers to receive appropriate protection and humanitarian assistance);

   • Article 37 of the [Convention of the Rights of the Child] (right not the be subjected to torture of the cruel, inhuman, of degrading treatment or punishment: no arbitrary deprivation of liberty);

   2. In Para 146 of the Decision Record, Honourable Member uphold the Country information and agrees that it is very common and there are many cases similar to Applicant, where girl, young as the age around five have reported been exchanged to settle a dispute of honour.

   3. Honourable Member has emphases more on the situation/dealing of the parents of Applicant rather than vulnerability of tangible Applicant. Attached decision, Marked as “Annexure A” is clear proof of that.

   4. In Para 147, Honourable Member is asking for link between removal from Australia and expose to fear in Pakistan. Where, link is clearly there, because Applicant does not hold a visa of any other country (Honourable Member apprehends this in Para. 38(a) of the attached decision letter) in the world so, because she does not have visa for any other country in the world so clearly, when she will be removed from Australia she has to go back to Pakistan, unless Australian Department of Immigration and Border Protection arrange otherwise.

Ground 1

1. Contrary to the assertion advanced in ground 1, there is no requirement on the Tribunal to consider the best interests of the child in determining whether or not the applicant meets the criterion under the Act. I accept the first respondent’s submission that the international treaty does not form part of Australia’s domestic law and cannot operate as a direct source of individual rights and obligations in the absence of some entrenchment through domestic legislation.

2. On the face of the material before the Court, the Tribunal correctly identified the relevant law in considering the applicant’s claim under the Refugees Convention and in relation to complementary protection. On the face of the material before the Court, the Tribunal made adverse findings that were open to the Tribunal for the reasons given by the Tribunal as summarised above. Those reasons cannot be said to lack an evident and intelligible justification. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 1.

Grounds 2, 3 and 4

1. I accept the first respondent’s submissions that grounds 2, 3 and 4 reflect a disagreement with the adverse findings by the Tribunal and do not identify any jurisdictional error. The weight to be given to the country information and the determination of the credibility of the claims advanced on behalf of the applicant were matters for the Tribunal. The Tribunal made findings that were open to it from the country information before the Tribunal. Grounds 2 to 4 otherwise invite merits review. This Court has no power to review the merits. On the face of the material before the Court no jurisdictional error is disclosed by grounds 2 to 4.

Conclusion

1. None of the grounds in the application make out any jurisdictional error. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2019