SZLXV and Ors v Minister for Immigration and Anor

[2017] FCCA 602

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZLXV & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 602

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – adverse credibility findings in relation to the applicants’ claims were the subject of rational and reasonable findings – it was open to the Tribunal to take into account the first, second and third applicants’ claims under the Refugees Convention in the assessment of their credibility – Tribunal did not approach the review with a closed mind – Tribunal complied with its statutory obligations – Tribunal afforded the applicants procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

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

Cases cited:

SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

First Applicant: SZLXV

Second Applicant:

Third Applicant:

Fourth Applicant:

SZLXW

SZLXX

AGR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 262 of 2016

Judgment of: Judge Street

Hearing date: 28 March 2017

Date of Last Submission: 28 March 2017

Delivered at: Sydney

Delivered on: 28 March 2017

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The First and Second Applicants to pay the First Respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 262 of 2016

SZLXV

First Applicant

SZLXW

Second Applicant

SZLXX

Third Applicant

AGR16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 5 January 2016 affirming the decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The first and second applicants are husband and wife and the third and fourth applicants are their children. The first applicant applied for and was granted a subclass UL 679 Sponsored Family visa on 31 May 2004 and the first applicant arrived in Australia on 3 July 2004. On 10 September 2004 the first applicant lodged a Long Stay visa application onshore which was refused on 17 September 2004.The first applicant departed from Australia on 29 September 2004. The first and second applicants were married on 16 May 2006.

3. On 10 October 2006 a further Subclass UL 679 visa application was lodged. The first applicant arrived in Australia on 12 December 2006.  On 24 January 2007 the first applicant lodged a protection visa application. On 13 April 2007 that protection visa application was refused.  On 10 January 2008 a differently constituted Tribunal affirmed that decision. 

4. On 29 January 2008 proceedings were commenced for judicial review.  On 8 July 2008 the application was dismissed by the then Federal Magistrates Court. On 29 July 2008 the applicant appealed to the Full Court of the Federal Court of Australia. On 12 November 2008 the Full Court of the Federal Court of Australia dismissed the applicant’s appeal. On 9 December 2008 the applicant lodged an application for special leave to appeal, which was dismissed on 29 April 2009. The applicant unsuccessfully sought Ministerial Intervention. Between 26 February 2010 and 5 June 2013 the applicants remained unlawfully in Australia.

5. On 23 April 2013 the first, second and third applicants attempted to lodge a further protection application which was initially refused. By letter dated 1 August 2013 the Department reversed that decision and accepted the application on the grounds of SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235. The fourth applicant was joined to the application for protection.

The delegate

1. On 21 August 2014 the delegate refused the application for protection by all four applicants. All four applicants were found to be citizens of Pakistan and Shia Muslims. The applicants claimed to fear harm from the wife’s family in relation to their marriage and children. The applicants’ also claimed to fear harm by reason of their Shia Muslim religion and the harm feared from the Sunni insurgents.

2. The delegate did not accept that the marriage of the applicants was socially shameful.  The delegate took into account the findings of the earlier Tribunal and was not persuaded that there were grounds to doubt those findings.

3. The delegate was not satisfied that the applicants were persons in respect of whom Australia had protection obligations. The delegate was not satisfied there were substantial grounds for believing that as a necessary and a foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk the applicants will be subject to significant harm. 

The Tribunal

1. On 3 September 2014 the applicants sought a review of the delegate’s decision dated 21 August 2014. By letter dated 27 November 2015 the applicants were invited to attend a hearing on 21 December 2015. The applicants attended on that date to give evidence and present arguments. 

2. The Tribunal noted the first applicant’s fear of harm by reason of his political opinion opposing prevailing attitudes to women in Pakistan and his membership of four particular social groups. The Tribunal noted that the second applicant feared harm by reason of her imputed political opinion in opposing prevailing attitudes to women in Pakistan and her membership of five particular social groups. 

3. The Tribunal noted in its reasons that it had difficulty in accepting that the first and second applicants were telling the truth about their problems in Pakistan and put that matter to them. The Tribunal addressed the applicants’ claims both under the Refugees Convention and in relation to complementary protection. The Tribunal correctly identified that it needed to consider the fourth applicant daughter’s claims against both criteria. 

4. The Tribunal rejected the first and second applicants’ material factual claims. The Tribunal did not accept that they had married against the wishes of the wife’s parents nor that they were regarded as having brought dishonour on the family as a result of their marriage. The Tribunal gave greater weight to the problems that the Tribunal identified in relation to the first and second applicants’ evidence than the purported corroborative documents.

5. The Tribunal accepted that the applicants were Shia Muslims and that violence between Sunni and Shia Muslims continues to result in hundreds of deaths in Pakistan each year. The Tribunal considered there was only a remote chance the applicants would fall victim to sectarian violence if they returned to their home in Punjab. 

6. Insofar as necessary, the Tribunal concluded that the first, second and third applicants did not have a well-founded fear of convention persecution in Pakistan. The Tribunal correctly made findings in relation to whether the fourth applicant daughter had a well-founded fear of persecution. The Tribunal did not accept that the fourth applicant daughter had a well-founded fear of persecution for a Convention reason.

7. The Tribunal found there were not substantial grounds for believing that as a necessary foreseeable consequence of the applicants being removed from Australia to Pakistan there is a real risk that they will suffer significant harm.

8. The Tribunal set out the relevant law in “Attachment A” to the Tribunal’s reasons. The Tribunal identified the applicants’ migration history and history in relation to applications for protection and set out the applicant’s claims and evidence. 

9. The Tribunal was not satisfied that the applicants met the criteria set out in s.36(2)(a) or s.36(2)(aa) of the Act. The Tribunal was not satisfied that either the first and second applicants or their children are persons in respect of whom Australia has protection obligations and affirmed the decision of the delegate.

Before this Court

1. On 24 March 2016, a Registrar of the Court made orders providing the applicants with an opportunity to file affidavit evidence, an amended application and submissions.  No such documents were filed. 

2. The grounds in the application are as follows:-

   1. The Tribunal conducted jurisdictional error when considering the material questions of fact;

   2. The Tribunal noted my claims however failed to actually deal with the claim in its decision;

   3. The Tribunal, when considering my claims, not by addressing the questions my claim raised, but by addressing different and irrelevant questions;

3. At the commencement of the hearing, the Court explained to the first applicant that this was a hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The first applicant confirmed that he understood the nature of the hearing as explained by the Court. 

The applicant’s submissions from the bar table

1. From the bar table, the first applicant sought to take issue with the adverse credibility findings made by the Tribunal. The adverse credibility findings made by the Tribunal cannot be said to lack an evident and intelligible justification and were open on the material before the Tribunal.

2. From the bar table, the first applicant suggested that the Tribunal had already made up its mind. In that regard, the first applicant referred to findings of the delegate. The first applicant was asked why it was submitted that the Tribunal was alleged to have already made up its mind and in substance the first applicant contended that the adverse findings reflected a closed mind. The adverse findings made by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

3. The Tribunal’s reasons reflect an orthodox approach to the applicants’ claims and a genuine and real intellectual engagement with the applicants’ claims and evidence. The Tribunal complied with its statutory obligations in relation to the conduct of the review. On the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. 

4. On the material before the Court, the Tribunal approached the review with an open mind and with a mind capable of persuasion in relation to the merits. No jurisdictional error was identified by anything said by the first applicant from the bar table. In substance, the first applicant’s submissions from the bar table invited this Court to engage in an impermissible merits review. This Court does not have jurisdiction to revisit the merits. 

Consideration

1. In relation to ground 1, the bare assertion of jurisdictional error in considering material questions of fact does not identify any jurisdictional error. The adverse credibility findings in relation to the applicants’ claims were the subject of rational and reasonable findings.  Ground 1 fails to make out any jurisdictional error. 

2. In relation to ground 2, it is apparent from the Tribunal’s reasons that the Tribunal addressed the applicants’ claims. Ground 2 fails to make out any jurisdictional error. 

3. In relation to ground 3, there was no identified irrelevant consideration taken into account by the Tribunal. On the material before the Court, the Tribunal properly considered the applicants’ claims. No jurisdictional error is made out by ground 3 of the application. 

4. Insofar as the Tribunal considered whether the first, second and third applicants were entitled to protection under the Refugees Convention, I accept the arguments of the first respondent that this did not give rise to any jurisdictional error by the Tribunal and that the consideration of the first, second and third applicants’ claims to refugee protection did not adversely or materially impact on the determination of the review in respect of the claim for complementary protection. Further, it was open to the Tribunal to take into account the first, second and third applicants’ claims under the Convention in the assessment of the credibility of the applicants. No jurisdictional error is made out in relation to the review by the Tribunal.

Conclusion

1. The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 April 2017