MZAJC v Minister for Immigration

[2015] FCCA 2559

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2559

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – risk of harm due to political involvement remote – no jurisdictional error – application dismissed.

Legislation:

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(1)(a)

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1695
SZFSK v Minister for Immigration & Anor [2013] FCCA 7
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

Applicant: MZAJC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1554 of 2014

Judgment of: Judge Hartnett

Hearing date: 24 August 2015

Delivered at: Melbourne

Delivered on: 22 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Ms Stone

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Amended Application filed on 11 February 2015 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $4,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1554 of 2014

MZAJC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court, upon a final hearing of this matter, was an Amended Application filed by the Applicant on 11 February 2015 seeking judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 30 June 2014 affirming a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Protection (Class XA) visa (‘the visa’).  The final orders as sought by the Applicant were:-

   “1. a writ of certiorari issue to quash the Tribunal’s decision;

   2. a writ of mandamus issue to compel the Tribunal to determine the matter according to law; and

   3. the first respondent pay the applicant’s costs of and incidental to the proceeding.”[1]

   [1] Amended Application filed on 11 February 2015.

2. The First Respondent sought that the application be dismissed with costs following the event.

3. The grounds of application, as set out in the Amended Application, are as follows:-

   “1. The Tribunal applied the wrong test in considering the applicant’s claim for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   (i)  The Tribunal found that the applicant is from the Swabi district of Khyber Pakhtunkhwa in Pakistan.

   (ii)  The Tribunal found that the applicant had a low level of involvement with the ANP, as a support or member, and may support the ANP if returned to the Swabi district of Pakistan.

   (iii)  The Tribunal found that ANP leaders and officials have been targeted by militants in Kyber Phaktunkhwa because of their anti-Taliban stance.

   (iv) In assessing the applicant’s claim for protection under s 36(2)(a) of the Migration Act 1958 (Cth), the Tribunal concluded that in view of the Applicant’s low level of involvement with the ANP, any chance of serious harm to the applicant as a supporter or member of the ANP in Swabi was remote.

   (v)  The Tribunal also found that suicide bombings occurred in 2010, insecurity increased in 2011, 33 explosions were reported in 2013, and that some level of militancy in the Swabi district is continuing, despite the efforts of locals, the police and authorities to counteract and eliminate such activity.

   (vi) In assessing the applicant’s claim for protection under s 36(2)(aa) of the Migration Act 1958 (Cth), the Tribunal concluded that Australia did not owe the applicant complementary protection obligations for the same reason as to why Australia did not owe the applicant protection obligations under the Refugees Convention.

   (vii)  By reason of the italicised works in paragraph iv above, it is to be inferred that the reason for which the Tribunal concluded that Australia did not owe the applicant protection obligations under the Refugees Convention was that any fear of harm that the applicant might have did not have a sufficient nexus to the Refugees Convention, which, relevantly, requires that any fear of harm be for reasons of an applicant’s membership of a particular social group or political opinion.

   (viii)  In applying this form reasoning to the claims under the Refugees Convention (which was lawful insofar as the claims under the Refugees Convention are concerned), and then adopting that same reasoning to dispose of the claims for complementary protection, it is to be inferred that the Tribunal applied the wrong test in its assessment of the claims for complementary protection, in that the Tribunal applied a test in its consideration of the claims for complementary protection that required that any fear of harm be feared for the reason of an applicant’s membership of a particular social group or political opinion.

   (ix)  This was the wrong test, because, relevantly, the correct test only required that the applicant be exposed to a real risk of significant harm, no matter the reason for that exposure.

   2. The Tribunal failed to consider a claim that arose on the materials before the Tribunal with respect to the applicant’s claim for protection under s 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   (i)  The applicant refers to and repeats paragraphs (i)-(viii) of the particulars to Ground 1.

   (ii)  By reason of the finding set out in paragraph (v) of the particulars to Ground 1, a claim for complementary protection arose on the materials before the Tribunal, being that there was a real risk that the applicant would suffer significant harm as defined in one or both of ss 36(2A)(a) and 36(2A)(d) of the Migration Act 1958 (Cth) for no reason personal to the applicant.

   (iii)  By purportedly disposing of this claim on the basis that any such risk of harm was remote because of the applicant’s low political profile, the Tribunal did not consider the claim in the form in which it arose.

   3. The Tribunal failed to consider a claim that arose on the materials before the Tribunal with respect to the applicant’s claim for protection under each of ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth).

   Particulars

   (i)  The Tribunal found that high profile members of the ANP have been targeted by militants in Kyber Phaktunkhwa because of their anti-Taliban stance, and that this has resulted in the death and injury of other persons, being the result of those persons proximity to high profile members at the time at which those high profile members were targeted.

   (ii)  The applicant advanced evidence that he had associated with high profile members of the ANP, and that if returned to Pakistan, he would continue to associate with high profile members of the ANP.

   (iii)  The Tribunal found that the applicant may support the ANP if returned to Pakistan.  Implicit in this finding is that so much of the applicant’s claim that, if returned, he would associate with high profile members of the ANP as a result of being a supporter of the ANP, survived the Tribunal’s rejection of the applicant’s claim to being a high profile member of the ANP.

   (iv) The Tribunal did not address this claim in its statement of reasons from which it is to be inferred that the Tribunal did not consider this claim.

   4.  The Tribunal erred by not enquiring into the capacity of the Applicant to participate in the oral hearing in the circumstances where an obligation to enquire into his capacity arose, which was a breach of the requirements of s 425(1) of the Migration Act 1958 (Cth).

   Particulars

   (i)  At the time of the oral hearing, the Applicant was suffering from severe anxiety, which interfered with his capacity to participate in the oral hearing.

   (ii)  In the circumstances of the oral hearing, the Tribunal had an obligation to inquire into the Applicant’s capacity to participate in the oral hearing, in order to comply with the obligations arising out of s 425(1) of the Migration Act 1958 (Cth).

   (iii)  Had the Tribunal made this inquiry, it would have been apparent that the Applicant’s capacity to participate in the hearing was compromised.

   (iv) Further particulars will be provided prior to the final hearing of this application.”

Background

1. The Applicant is a citizen of Pakistan, being from the Swabi District of Khyber Pakhtunkhwa.  He arrived in Australia on 26 June 2011 as the holder of a student visa. 

2. The Applicant applied for the visa on 23 July 2012.  He claimed he was an active participant with the Pukhtoon Students Federation (PSF) and the Awami National Party (‘the ANP’) prior to his arriving in Australia, and that he had been an active member of the ANP since 2005.  He claimed that he had been elected as general secretary and vice president of the PSF which is the student wing of the ANP.  The Applicant claimed to fear harm because recently members and leaders of the party had been threatened and killed by the Taliban.  He claimed that he had been assaulted in 2009 after which he had been hospitalised, and that he had received a letter threatening him to stop working for the ANP.

3. In support of his claims, the Applicant submitted the following documents to the First Respondent’s Department:-

   a)medical documents from 2009 purportedly relating to the Applicant’s hospitalisation after he was attacked;

   b)a typed undated letter on the letterhead of the ANP stating that the Applicant was a member and used to take part in party activities;

   c)a typed letter dated 28 March 2012 on the letterhead of the PSF stating that the Applicant served as general secretary of that group for one and a half years, after which he was elected vice president from June 2007 until December 2009;

   d)a handwritten letter dated 25 March 2012 which stated that the Applicant was a member of the ANP and used to take part in party activities;

   e)an Affidavit from a roommate of the Applicant in Lahore stating that the Applicant had received miscellaneous telephone calls between January 2010 and June 2011 (translation only);

   f)a membership card from the ANP and a membership card from the PSF (translation only);

   g)a letter said to be a letter from the Taliban delivered to the family home in 2012 threatening the Applicant (translation only); 

   h)a First Information Report dated 20 September 2009 regarding a complaint made by the Applicant about the attack on him (translation only); and

   i)Country information. 

4. The application was refused by the Delegate on 16 November 2012.  The Applicant applied to the Tribunal for a review of the Delegate’s decision on 18 December 2012. 

5. In his decision, the Delegate set out Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’), which provides that a “refugee” is a person who:-

   “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;  or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”[2]

   [2] Department of Immigration and Citizenship Decision Record dated 16 November 2012.

6. The Delegate was satisfied that the Refugees Convention ground of political opinion was the essential and significant reason for the harm feared by the Applicant as required by s.91R(1)(a) of the Migration Act1958 (Cth) (‘the Act’). The Delegate also found that the harm the Applicant claimed to fear amounted to persecution as set out in s.91R of the Act.

7. The Delegate noted the Applicant claimed to fear that he would be killed by the Taliban because of his work as an activist with the PSF, being the student wing of the ANP.  The Applicant claimed to have been attacked by armed men and beaten because of his work with this group.  He also claimed to have received telephone threats and a letter telling him to stop his activities.

8. The Delegate considered country information describing the PSF and ANP.  On the basis of that country information, the Delegate accepted that members of the ANP had been targeted by the Taliban, particularly in the province of Khyber Pakhtunkhwa where the Applicant lived before moving to Lahore in Punjab Province.  The Delegate did not accept, however, that the Applicant would be at risk of such harm upon return to Pakistan.  The Delegate noted that the country information pointed to leaders and elected representatives of the ANP being the target of the Taliban. 

9. The Delegate found no country information to support a claim that low level members and sympathisers of the ANP were targeted in any real way.  The Delegate noted that tended to reflect the Applicant's experiences.  He did not face any form of harm following his move to Lahore.  The Delegate was satisfied the Taliban were not interested in targeting the Applicant in the manner he claimed to fear.  The Delegate found the Applicant was no longer actively involved in political activities with either the PSF or ANP and that he had ceased to be involved with those organisations for some years. 

10. The Delegate also found that if the Applicant was at risk of harm, and generally fearful for his safety as a result of the threats he claimed were directed at him, he would have fled the country immediately upon receipt of his Australian visa, instead of not leaving the country for a further month and a half.  His delay in leaving the country was not consistent with someone genuinely fearing for their safety.   Further, he considered the Applicant, if genuinely concerned for his safety, would have made application for protection in Australia immediately upon arrival in the country.  Instead, he delayed making application for more than a year.  His application was submitted only a week prior to his student visa being cancelled due to a breach of condition on his part.  Given his actions, the Delegate was not satisfied he had a subjective fear of persecution upon return to Pakistan.

11. The Delegate considered the complementary protection criterion and, on the facts before him and his findings in respect thereto, found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country there is a real risk the Applicant would suffer significant harm.

12. The Applicant submitted additional documents to the Tribunal prior to appearing before it at a hearing on 18 June 2013.  Those documents were:-

    a)a typed letter dated 10 December 2012 on the letterhead of the PSF stating that the Applicant was vice president of the group and that the Applicant's name was not disclosed on the website due to security threats (the Delegate had relied on the absence of the Applicant's name from the website); 

    b)an Affidavit dated 12 December 2012 from the Applicant's brother, and an Affidavit dated 12 December 2012 from the Applicant's friends stating that while they lived in Peshawar the Applicant had been continuously threatened with death on the telephone, and for this reason the Applicant had moved to Lahore in January 2010; 

    c)a First Information Report dated 4 May 2013 regarding a complaint made by the Applicant's brother about the threats he and the Applicant were receiving from unknown persons and reporting that someone had thrown a grenade into his house and fired shots at the house; 

    d)a letter from the Sarhad Rural Support Programme regarding the risk from terrorism in certain areas; and

    e)further Country information.

13. The Tribunal made its decision on 30 June 2014 and notified the Applicant of that decision by correspondence of 2 July 2014.  The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

Decision of the Tribunal

1. The Tribunal set out in paragraph 11 of its Decision Record dated 30 June 2014 (‘the Decision Record’) that the issue before it was whether the Applicant may be harmed in Pakistan because of his involvement with the ANP and the PSF.  The Tribunal noted the ANP is a liberal progressive secular Pashtun party which held government in Khyber Pakhtunkhwa between 2008 and 2013.  The ANP has been targeted by militants because of its secular nature and anti-Taliban stance.  The PKF (the student wing of the ANP) is based in Khyber Pakhtunkhwa.

2. The decision of the Tribunal is accurately set out in the submissions of the First Respondent, some of which are as follows:-

   “8. The RRT accepted that the applicant may have had some involvement with the PSF at Peshawar University, but did not accept that he joined the PSF in 2005 or that he was an office holder in the PSF between 2006 and 2009.  This was on the basis of inconsistencies identified between the applicant's account and his documentary evidence (see [23],) and the limited knowledge displayed by the applicant about the structure and organisation of the PSF (see [24]).

   9. The RRT accepted that the applicant and his family may have been ANP supporters, but did not accept that the applicant joined the ANP in 2005 or worked for a candidate in 2008 as claimed.  This was on the basis of inconsistencies between the applicant's account in his documentary evidence, and the fact that the applicant did not know the full name of the candidate for whom he claimed to have worked (see [28]).

   10. The RRT did not accept that the applicant had received a threatening letter in 2009 as claimed, on the basis of inconsistencies and implausibilities in his account (see [31]). The RRT did not accept that the applicant was attacked in 2009 as claimed (see [37]).  The RRT identified inconsistencies between the applicant's account, the first information report and the medical documents the applicant had submitted, and noted that the affidavits provided by third persons referred to the applicant moving to Lahore due to phone calls, whereas the applicant claimed it was prompted by the attack.  The RRT placed no weight on the medical document which stated that the applicant was injured by the Taliban (see [38]).

   11. The RRT did not accept that the applicant had received threatening telephone calls in Peshawar as claimed in the affidavit from his brother and friend, as the applicant had only claimed to have received calls after moving to Lahore (see [39]).  The RRT did not accept that the applicant had received threatening calls in Lahore as it did not accept his reasons for why he would receive such calls.  The RRT placed no weight on the affidavit which stated that the applicant had received miscellaneous calls in Lahore as evidence that the applicant was receiving threatening calls.

   12. The RRT had regard to the letter said to have been delivered to the applicant's family in 2012 and to the first information report regarding an attack on the family home in 2013.  The RRT did not accept that the applicant's family had received a threatening letter as claimed (see [46]). The RRT did not accept that the first information report was a genuine document because the content regarding threats to the applicant and his family were not true.  The RRT did not accept that the claimed attack on the home had occurred (see [48]).”

1. In paragraph 45 of its Decision Record the Tribunal said:-

   “When the Tribunal queried why such a letter would be delivered to his family in November 2012 when he was not a senior member of the PSF or the ANP and had no involvement with either organisation since at least 2009 and had been out of Pakistan for more than a year, the applicant stated that he was important because he was involved in activities and supported the party, was active in his village and was actively involved in stopping speeches at the university.  The applicant stated that even low level members of the ANP had been killed, mostly people who worked for senior ANP people.  The applicant also stated that, although he was not in a high position, he was well known because of his influence and involvement in activities and that, as the eldest son, he was a stakeholder for his father.  When the Tribunal noted that his father had resided in Dubai for many years, the applicant's representative stated that the applicant's grandfather and uncle were in Swabi and the influence carried through the family.”

2. The Tribunal concluded that it did not accept that the Applicant had been targeted, threatened or harmed in the past because of his involvement with the PSF or the ANP.  In paragraph 48 of its Decision Record, the Tribunal accepted that the Applicant's family may be ANP supporters and accepted that there was violence directed toward ANP supporters during the election campaign in 2013.  The Tribunal noted that according to some reports, the ANP lost power in Khyber Pakhtunkhwa in 2013 because it was unable to campaign in the district due to threats from militants.

3. The Tribunal did not accept that the Applicant would be involved in the PSF in the future if he returned to Pakistan or that he would be at risk of harm because of his past involvement.  The Tribunal accepted that the Applicant may support the ANP in the future, but found that any risk of serious harm as a supporter or member of the ANP in the Applicant’s home area was remote.  It said at paragraph 55 of the Decision Record:-

   “The Tribunal accepts that the applicant may support the ANP on return to Pakistan.  The applicant is not an ANP leader or official however and has had limited involvement with the ANP.  Swabi is not a remote tribal area.  It is close to the border of Punjab and Islamabad and is an educated district which is resisting extremism.  Although there is a level of militant activity in the area, it is not supported by locals and the police and authorities are reportedly taking steps to counteract and eliminate such activity.  In view of the applicant's low level involvement with the ANP, the Tribunal is satisfied that any chance of serious harm to the applicant, as a supporter or member of the ANP in Swabi is remote.”

4. The Tribunal said at paragraphs 56 and 57 of the Decision Record:-

   “56. For the reasons set out above, the Tribunal does not accept that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future in Pakistan because of his political opinion or for any other Convention reason.

   57. As the Tribunal has found, for the reasons set out above, that there is no more than a remote chance of harm to the applicant, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk he will suffer significant harm because of his involvement with the ANP or the PSF.”

Consideration

1. Ground 4 of the Amended Application was not pressed by the Applicant in his Contentions of Fact and Law filed on 10 August 2015, nor in oral submissions at the hearing.  It has no merit. 

2. As to grounds 1 and 2 of the Amended Application, Counsel for the Applicant relied upon the decision in SZFSK v Minister for Immigration & Anor [2013] FCCA 7 at paragraphs 87 to 98 where Judge Driver found that the Tribunal had fallen into error by considering claims for complementary protection in a summary way, by relying on its analysis of the Applicant's claims under the Refugees Convention. Counsel noted the correctness of that decision, on its own particular facts, was not doubted by the Full Federal Court in SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125.

3. The first ground of the Amended Application alleges that the Tribunal applied the wrong test when considering s.36(2)(aa) of the Act because in finding that the Applicant did not satisfy that section, the Tribunal relied upon its earlier factual findings which the Applicant claimed were referrable only to the criterion in s.36(2)(a) of the Act. The second ground of the Amended Application alleges that in so doing, the Tribunal failed to consider a claim to fear significant harm for some reason other than one which was personal to the Applicant.

4. The Applicant's Contentions of Fact and Law argue that the Tribunal's finding at paragraph 55 of the Decision Record, as referred to in paragraph 21 herein, should be read as a finding that the Applicant did not have a real chance of serious harm because there was no Refugees Convention nexus. I accept the submissions of the First Respondent that that is not a correct reading of the findings as made by the Tribunal. The Tribunal finding was that the Applicant's risk of harm due to his political involvement was remote. This was clearly set out in paragraphs 55, 56 and 57 of the Decision Record. Because of that remote chance of harm to the Applicant, the Tribunal did not accept that the Applicant met the criterion as set out in ss.36(2)(a) and 36(2)(aa) of the Act.

5. As submitted by the First Respondent there is no error in this reasoning as the test for a “real chance” is the same as that for a “real risk”.[3] The Tribunal’s finding as set out in paragraph 55 of its Decision Record, which referred specifically to the risk of harm to the Applicant due to his political involvement was responsive to the claim made by the Applicant before the Tribunal.  The Applicant did not advance any claim to fear significant harm on a separate basis.  He did not put a claim before the Tribunal, which is now put, that he would come into contact with high level members of the ANP who would themselves be harmed, and by his physical proximity to them, he also would be harmed.  That is, he did not make a claim to fear harm as a result of generalised violence as is contended in the Applicant's Contentions of Fact and Law.

   [3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246].

6. The Applicant assertion that the Tribunal rejected the Applicant's claim to being owed protection obligations under the Refugees Convention, insofar as that claim rested on the existence of generalised violence in the Swabi District, because the claim lacked the requisite nexus to a required reason under the Refugees Convention, cannot be accepted. The Tribunal did not consider the claim now put that exposure to generalised violence in the Swabi District could amount to significant harm within the meaning of s.36(2)(aa) of the Act, because that claim was not put before it.

Ground 3

1. The third ground of the Application alleges that the Tribunal failed to consider a claim which arose on the materials before it, even if not clearly articulated.  That claim, that the Applicant would be exposed to a real chance of serious harm, or a real risk of significant harm because he would continue to associate with high profile members of the ANP who had been targeted, and this could cause him to be proximate to persons who would be targeted in attacks, I find was not made expressly by the Applicant. The Applicant submits that the claim nevertheless, arose on the country information before the Tribunal. 

2. It is correct the Tribunal did not address the claim now put in its Decision Record. I find it was not required to do so.  No such claim arose from the material, including country information, before the Tribunal, and on a proper reading of the Tribunal's decision, and its findings as a whole, the Applicant's claims appear consistently presented as being related to his own political involvement, activities and opinion. The claim now articulated by the Applicant, did not arise on the material before the Tribunal. 

3. The Applicant's claim was consistently framed as a claim to fear harm due to his own political involvement, not due to his physical proximity to others.  In the absence of that express articulation, no such claim arose on the materials before the Tribunal.

4. The Court accepts the submission of the First Respondent that the exposition of such a claim cannot depend on creative activity by this Court.  As Allsop J (as His Honour then was) said in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at paragraph 15:-

   “Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.”

5. The unarticulated claim did not “arise tolerably clearly from the material” before the Tribunal in the factual circumstances of this case. The Court determines the application shall be dismissed and that costs will follow the event.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  22 September 2015