SZUNL v Minister for Immigration - [2016] FCCA 2058

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNL v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2058

Catchwords:
MIGRATION – Application for review of Tribunal decision – whether Tribunal breached s.424A or s.424AA – whether Tribunal failed to consider claims made by the applicant – whether Tribunal failed to enquire – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Cases cited:
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
SZMKR v Minister for Immigration and Citizenship [2010] FCA 340
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) ALJR 1088
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992

Applicant:

SZUNL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1654 of 2014

Judgment of:

Judge Nicholls

Hearing date:

13 May 2016

Date of Last Submission:

27 May 2016

Delivered at:

Sydney

Delivered on:

11 August 2016

REPRESENTATION

Applicant:

In person

Solicitor for the Respondents:

Mr A Keevers of Sparke Helmore

ORDERS

The application made on 17 June 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1654 of 2014

SZUNL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 June 2014 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 14 May 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Evidence

In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Winnie David, transcriptionist, affirmed on 21 August 2014, annexing a copy of the transcript (“T”) of the Tribunal hearing the applicant attended on 24 March 2014, filed by the applicant.

Background

The applicant is a citizen of Pakistan. He is of Shia Muslim faith and Punjabi ethnicity. He entered Australia as the holder of a student visa on 26 May 2009. The applicant applied for a protection visa four years later on 11 June 2013. He was assisted by a registered migration agent (CB 1 to CB 36).
The applicant’s summary of his claims to protection were initially set out in a Statutory Declaration dated 7 June 2013, which was received by the Minister’s department on 14 August 2013 (CB 37 to CB 41).
The basis of the applicant’s claim was that he feared returning to Pakistan because his life had been threatened by the Taliban. As an officer in the Pakistan army, the applicant claimed to have participated in two operations against the Taliban in 2007.
The first operation (“Operation Red Mosque”), in July 2007, involved engagement with the Taliban who had been killing civilians and had taken refuge in a mosque. The applicant, and soldiers under his command, attacked the mosque. The attack on the mosque was met with a negative reaction from many members of the Pakistani community given it was an attack on a “house of Allah”. He claimed he was then “black listed” by his community and disowned by his family.
In the second military operation in November to December 2007, the applicant claimed that he led troops in attacking and recapturing a number of Taliban strongholds. The applicant said he considered leaving the military at this time because he had seen a number of shocking events, including the beheading of five women (CB 39.3).
In March 2008, the applicant was informed by his father that his father had received a DVD from the Taliban which depicted the Taliban “slaughtering Pakistan Army officers” (CB 39.4). The applicant saw this as a threat, and that the Taliban had identified his father’s home.
The applicant’s migration agent made submissions in support of the application on a number of occasions (in particular see CB 152 to CB 165). The applicant attended an interview with the Minister’s delegate on 6 November 2013. The delegate refused the grant of the visa on 14 January 2014 (CB 166 to CB 188).
The applicant applied to the Tribunal for a review of that decision on 21 January 2014 (CB 189 to CB 195). He continued to be represented by the same migration agency, BMA Lawyers (“BMA”) (CB 189 to CB 195). On 21 March 2014 the applicant’s representative made written submissions to the Tribunal (CB 206 to CB 247). The submissions made reference to an incident on 6 January 2014 involving a vehicle in which his father and sister were travelling, which was attacked, and the driver of the vehicle was killed (CB 222). The applicant claimed that this attack was meant for him as the attackers would be expected to have thought he was in the vehicle. The applicant attended a hearing before the Tribunal on 24 March 2014. As stated above, a transcript of that hearing is in evidence before the Court.
The Tribunal had concerns with the credibility of the applicant’s evidence, which it identified at the hearing with him. In particular, the Tribunal identified inconsistencies in his accounts of what had occurred during the military operations in 2007, with claims made in an earlier unsuccessful application for a student visa, the applicant’s claim concerning the DVD, and the applicant’s claim that he had been in hiding since leaving the army and until coming to Australia ([48] at CB 281 to [57] at CB 284).
The Tribunal found that the applicant’s delay in making his application for protection was “demonstrative of the applicant’s lack of concern for his safety on return” and that “the lodging of the protection visa [was] completed only when he had no other option to seek to remain in Australia” ([61] at CB 284). This was also in circumstances where the applicant had returned to Pakistan for a period in 2010, and after he had had other dealings with the Minister’s department in 2012 and 2013 ([58] at CB 284).
The Tribunal accepted that the applicant would be imputed with an anti-Taliban political opinion given his involvement as an army officer in anti-Taliban operations ([63] at CB 284 to CB 285). However, the Tribunal did not accept that the applicant had been targeted for harm by army insurgents because of his involvement in the Pakistan army or the specific campaign against the Taliban or any other groups ([73] at CB 286). The Tribunal did not accept that the applicant was a person of interest to the Taliban or any other insurgent group because of his activities in the army as he had claimed ([75] at CB 287).
The Tribunal had regard to country information concerning army officers and the Taliban. The Tribunal found that the information did not show that junior officers were being targeted as implicitly claimed by the applicant. To the contrary, it found that the applicant’s junior rank meant that he was not likely to be targeted.
The Tribunal did not accept that “…an ex-junior officer like the applicant would be targeted by the Taliban or army insurgent group for any reason” and further ([76] at CB 287):
“The Tribunal [did] not consider that the applicant would be seen as a person whom the Taliban would seek to harm because of his role within the army, either during his time in the army, or now that he has left the army.”
The Tribunal also did not accept the applicant’s claim that he was at risk because he would be a returned ex-army officer who had stayed in a Western country ([77] at CB 287).
Further, the Tribunal found he did not have a fear of harm arising from his political or imputed political opinion ([79] at CB 288). It also found that he did not face a real risk of serious harm by reason of membership of any particular social group ([80] at CB 288 to [86] at CB 289). It did not accept that he feared harm as a member of either of the particular social groups advanced in submissions by the applicant (“former or current members of the Pakistani army” or “ex-army officers from Pakistan” ([80] ‑ [82] at CB 288).
The Tribunal variously found that the applicant’s claims to fear of harm from extended family members, fear of harm for reason of his Shia Muslim religion, and fear arising from generalised violence in Pakistan, did not give rise to a real chance of serious harm or satisfy the complementary protection criterion.

The Application Before the Court

The application to the Court contains three particularised grounds prepared by a solicitor who previously represented the applicant:
“1. The Tribunal failed to follow the requirements of Sections 424 A and 424 AA.
Particulars
(a) The Tribunal at para 51 of the decision refers to country information about Mullah Fazlullah and did not put this information appropriately to the applicant for his response.
2. The Tribunal failed to consider all of the applicant’s claims.
(a) The Tribunal at paragraphs 91 to 95 of the decision considered the applicant’s claims as a Shia Muslim, but failed to consider him as a member of the social group of former or present Shia military officers.
3. The Tribunal failed to make appropriate enquiries.
(a) The Tribunal proceeded in its assessment of the claims on the basis the applicant was no longer a Military Officer, whereas the applicant claimed he had sought to retire from the Military but his retirement was not accepted.”
The applicant’s solicitor filed a notice on 5 February 2016 withdrawing as the applicant’s lawyer. At the final hearing of this matter on 7 April 2016, the applicant sought an adjournment to allow for a further opportunity to arrange for alternative legal representation.
The applicant explained that his efforts to find alternative representation had been hampered by a lack of funds. While there is no right of legal representation in matters of this type, I nonetheless adjourned the final hearing to 13 May 2016 to enable the applicant to pursue the raising of funds and to obtain any legal representation. I noted with the applicant that absent any unforeseen event, the final hearing would proceed on the next occasion even if he continued to be without representation.
At the resumption of the hearing on 13 May 2016, the applicant appeared in person. He was assisted by an interpreter in the Urdu language. He had been unable to arrange legal representation and indicated that the hearing should proceed. The applicant confirmed that he pressed all three grounds of the application filed by his previous lawyers.
In his submissions to the Court, the applicant focussed on ground three. The complaint was that the Tribunal did not ask him questions about the circumstances as to how he left the Pakistani Army and what would happen to him on return given those circumstances.
In short, the applicant said he “left” the Army before completing the period of service. The question, therefore, as to whether he retired from the Army or left without authority was relevant to his claimed fear of the Taliban.
The applicant confirmed he pressed ground one on the basis of what his previous lawyer had explained to him about that ground. He stated that he did not press ground two. The applicant explained that his fear of harm from the Taliban was his own individual fear, and not as part of some group.

Consideration

Ground one asserts that the Tribunal failed to follow the requirements of s.424A and s.424AA of the Act. The particulars direct attention to [51] (at CB 282) of the Tribunal’s decision:
“With respect to the operation against the Taliban in the Swat Valley later in 2007, the applicant claimed that his platoon operating with others had killed a number of Taliban, including Mullah Fazlullah, who the applicant identified as a senior leader of the Taliban in that region. The Tribunal pointed out some concerns with this claim. Most prominent was the country information about Mullah Fazlullah, who came out of the Swat Valley region of Pakistan, recently taking on the leadership of western region Taliban forces. There was country information identifying this person as the leader. There was also a significant lack of information about the death of Mullah Fazlullah, which was unusual as such a death would be something of prominence. The applicant stated he had not seen the body of Mullah Fazlullah, but was told by his senior officers that he was killed. The applicant stated that there may be many people called Mullah Fazlullah, but that he believed the prominent leader from Swat Valley had been killed.”
In essence, the complaint is that in that paragraph, the Tribunal referred to country information about a particular person, Mullah Fazlullah, and that the Tribunal did not put this information to the applicant for his comment or response as required by s.424A(1) of the Act.
With regards to the procedure under the Act, I understood the complaint in ground one to be as follows. Section 424A(1) of the Act obliges the Tribunal to give to an applicant in writing, or orally (see s.424AA), information which it consider would be the reason or part of the reason for affirming the decision, to tell the applicant the relevance of the information to the review, and to give the applicant the opportunity to comment on or respond.
The basis for the applicant’s ground can be said to be that the Tribunal referred to country information about “Mullah Fazlullah” and that on its face, this information did not fall within the exception to s.424A(1) as set out in s.424A(3)(a) of the Act. That is, the country information was specifically about another person, namely the Mullah, and was not about a class of persons of which the Mullah was a member. Ultimately, the Minister did not press his initial submission that s.424A(3)(a) of the Act applied.
It is important to note here that the applicant’s ground directs specific attention to the Tribunal’s decision record and not to any evidence of what may have occurred at some antecedent point in the conduct of the review.
The relevance of this, is as the High Court explained in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”), the Tribunal’s obligation is in relation to information that “would be” the reason or part of the reason, and this directs attention to some point in time antecedent to the drafting of the decision record (SZBYR at [17]).
However, the applicant’s ground has been drafted with a focus on the Tribunal’s decision record. In that light, I agree with the Minister that when read as a whole, the Tribunal’s decision record does not support the proposition that the “information” about the Mullah was the reason or part of the reason for affirming the delegate’s decision.
The applicant had claimed to fear harm, in part, because as an army officer, he had taken part in military operations in 2007 in the Swat Valley against the Taliban. In this context, the applicant claimed that his platoon, with others, had killed a number of Taliban, including the Mullah.
What appears at [51] (at CB 282) of the Tribunal’s decision record is its account of what had occurred, in part, at the hearing with the applicant concerning this claim. The Tribunal referred to country information that confirmed the applicant’s claim that the Mullah had taken over leadership of the Taliban forces in the area of operations. That information cannot be said, therefore, to be a part of the reason for affirming the delegate’s decision, since it would go to supporting the applicant’s claim, rather than rejecting it (see SZBYR at [17]). That information was therefore not caught by s.424A(1) of the Act.
In any event, as is clear from the remainder of the decision record, the Tribunal accepted that the applicant had been involved in operations in the Swat Valley against the Taliban and in operations “that have seen insurgents captured or killed”. It also accepted that the Mullah was a prominent insurgent leader in that area (see [63] at CB 284 to [64] at CB 285). This also supports the view that the information was not a part of the reason for affirming the delegate’s decision.
The Tribunal also referred to the “significant lack of information about the death of Mullah Fazlullah” ([51] at CB 282). The applicant had claimed that his platoon, with others, had killed the Mullah. The relevant context for the Tribunal’s statement as to a lack of information was the question as to whether the applicant had killed, or would be held responsible for the death of the Mullah, thereby attracting the adverse attention of the Taliban insurgents.
The Tribunal explored this question with the applicant at the hearing. At [66] (at CB 285) it reports that it “questioned the applicant directly as to why the insurgents would seek to target him specifically”. The Tribunal found that his “responsibilities” in the Swat Valley, based on the applicant’s own evidence, were “not significant”, and he had not done anything to draw “undue attention” to himself in these military operations. The applicant’s evidence was that he had not been personally responsible for the Mullah’s death, and had only been told of his death.
However, attention must focus on what the Tribunal relied upon. As is clear at [51] (at CB 282), the Tribunal referred to the absence, or significant lack of information about the Mullah’s death. As was made clear in SZBYR at [18] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [23], other than with some exceptions not relevant here, “information” does not include gaps, omissions or a lack of evidence. Section 424A(1) of the Act therefore was not engaged.
The transcript of the hearing confirms the view that I have taken. The Tribunal told the applicant at the hearing that the information about the Mullah’s death was not “critical” to his claims (see T15.45 to T16.17).
In any event, both the transcript and the decision record support the Minister’s submissions that the absence of information about the Mullah’s death was not seen, or used, by the Tribunal to support any proposition that the Mullah had not been killed. The Tribunal’s affirmation of the delegate’s decision was not based on the rejection of the applicant’s claim in relation to the Mullah (see also SZMKR v Minister for Immigration and Citizenship [2010] FCA 340 at [33]).
The Tribunal’s reference to the lack of country information was to note that there was an absence of evidence to support the applicant’s claim that the Mullah had been killed in the Swat Valley. The Tribunal drew no adverse view of the applicant’s credibility because of this. Ultimately, on a fair reading, the absence of information of the death of the Mullah was not of itself a part of the reason for affirming the delegate’s decision. In all, ground one is not made out.
The applicant did not press ground two, although this appeared to be because he did not understand the legal error asserted in the ground. In that circumstance, and given that the applicant was unrepresented before the Court and the ground was prepared by lawyers, I did consider whether any jurisdictional error could have been revealed in this ground. However, given what is set out below, it may be that the applicant was better informed than his former lawyers.
Ground two asserts that the Tribunal failed to consider all of the applicant’s claims. The particulars direct attention to [91] to [95] of the Tribunal’s decision record (see CB 290). The assertion is that the Tribunal considered the applicant’s claims to fear harm as a Shia Muslim, but did not consider the claim that he was a member of the social group of former, or present, Shia military officers.

As the Minister submits, the Tribunal’s obligation is to respond to the claims advanced by the applicant. That is, a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) ALJR 1088) or claims or integers of claims expressly made or clearly arising from the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1).
It is not apparent on the evidence before the Court, where the matter particularised in the ground was raised, or otherwise arose, from the material or arguments made by the applicant and his representative, and as ultimately put before the Tribunal.
The two social groups identified by the applicant’s representative were those set out in their submission of 20 March 2014 under the heading of “Persecution arising from membership of a particular social group” (CB 211 to CB 220). The Tribunal dealt with this claim.
While the applicant advanced claims to fear harm as a former or present military officer and as a Shia Muslim in Pakistan, the two were distinct claims emanating from different factual circumstances. I cannot see that the applicant, either before the delegate or the Tribunal, can be said to have advanced claims to fear harm in the way proposed by the particular to ground two.
The transcript of the Tribunal hearing reveals that the Tribunal specifically raised with the applicant why he would be at risk in Pakistan because he was a Shia Muslim (see T31.49), in circumstances where 30 per cent of the Pakistani population was Shia (T32.3).
The Tribunal specifically asked the applicant how the fact of his Shia religion related to his claim to fear harm because he would be targeted by the Taliban as a result of his military activities (see T32.14). What follows from the applicant cannot, when read fairly, be said to be an expressly articulated claim, or a claim clearly arising from what he presented, to fear harm because of the composite of his religious faith and the military operations.
The Tribunal extensively considered the applicant’s claims to fear harm arising from his military activities and membership of the army and his Shia faith. There is nothing to suggest that the Tribunal was required to consider these two claims in a composite or cumulative fashion. The applicant’s claims relating to his army activities contained no religious element and, conversely, his claims arising from his religion did not involve his military activities. In all, ground two, had the applicant pressed it, would not have revealed jurisdictional error.
Ground three asserts that the Tribunal failed to make appropriate enquiries. This is explained as follows. The Tribunal proceeded in its assessment on the basis that the applicant was no longer a military officer in circumstances where the applicant claimed he had sought to retire from the military, but his retirement was “not accepted” by the authorities. The Tribunal proceeded on the basis that the harm feared by the applicant was in circumstances where he was no longer an army officer. That is, he had left the army.
In the submissions to the Tribunal of 20 March 2014, the applicant’s representative relevantly stated (CB 209.8):
“In order to protect himself and his family, the Applicant left the army in September 2008. The Applicant instructs that first he took vacation leave and later he applied for honourable discharge which was refused as the Applicant had not completed his thirteen years of service as per his contract.”
Some care must be taken here. This submission was never subsequently expressly, or satisfactorily, explained, and there is plainly some ambiguity. What appeared to have been rejected was his application for an honourable discharge. This does not necessarily mean that he did not otherwise leave the army in September 2008, as is also stated.
This statement, and the ambiguity in it, must be understood in light of all the other references to the applicant’s army status made in his submissions and evidence. All of these references are to the effect that the applicant had left the army.
The Minister’s first written submissions (“RS1”) conveniently summarise these references ([24] of RS1).
“[24] The factual basis for this claim is unclear. The claim that the applicant’s retirement from the army was only made once, and this was done in the applicant’s submissions to the Tribunal dated 20 March 2014. Every other reference to the applicant’s military service makes plain that the applicant had left the army. For example:
[24.1] In submissions to the Delegate dated 13 November 2013, the applicant stated that he was ‘previously a member of the Pakistani Army’ and ‘the applicant can be considered a member of a particular social group, namely ex-Army officers from Pakistan.’ A fortiori, following provision of news articles relating to attacks on ex-army, the submissions state ‘although the applicant is no longer serving in the Army, he would be still at risk of serious harm upon return to Pakistan.’
[24.2] The submissions to the Delegate dated 9 December 2013 similarly exclusively relate to news articles relating to ex-army officers, and reiterate the claim that ‘the Applicant is no longer working with the Pakistani Army.’
[24.3] The submissions to the Tribunal dated 20 March 2014, in which the sole reference to the unaccepted retirement is made, otherwise unequivocally state that ‘the Applicant left the army in September 2008.’ These submissions further state that ‘the fact that the Applicant left the army is irrelevant…’ In addition to this, the submissions acknowledge the Delegate’s finding that the applicant was no longer a member of the army, and provide no rebuttal or indication that this was not correct.
[24.4] Post-hearing submissions to the Tribunal dated 11 April 2014 continue with the flavour of the foregoing submissions, in emphasising the danger to ex-army officers.”
[Footnotes omitted]
The applicant has not been able to point to any other part of the evidence now before the Court to suggest a contrary view. On the evidence before the Court, the one ambiguous reference in the respondent’s submissions that the applicant sought to retire, but his retirement was not accepted, must be seen in light of all other references in the applicant’s evidence and submissions before the Tribunal that he had left the Pakistani Army (see for example written submissions to the delegate dated 13 November 2013 at CB 152 to CB 154, and written submissions of 9 December 2013 at CB 163). In particular, in the same written submissions of 20 March 2014, the applicant’s representative also stated that the applicant had left the army in 2008 (CB 209).
In the same submissions, the representative also stated (CB 211.9):
“Therefore, the fact that the Applicant left the army is irrelevant as he still faces a real chance of harm on the basis that he is still known within the community as being someone who is supportive of the Pakistani Government.”
In the circumstances, it was reasonably open to the Tribunal to proceed on the basis, as also found by the delegate, that the applicant claimed to have left the army, but his status as a former military officer who had participated in operations against the Taliban still left the likelihood of harm, should he return to Pakistan.
That is, whether he was technically still an army officer or had left the army was “irrelevant”, because that distinction did not affect the likelihood of the claimed harm.
As the Minister submitted, the relevant test in relation to the matter of inquiries by the Tribunal is set out in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (“SZIAI”). There is no general duty on the Tribunal to make enquiries (Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992), however, as set out in SZIAI at [25]:
“…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction…”
In the current case, it cannot be said that the Tribunal failed to make an obvious inquiry about a critical fact, in circumstances where the applicant presented his claims on the basis of having left the army.
However, and of even greater importance, is that the applicant has not explained, nor is it otherwise apparent, that his actual status, whether as an active or non-active military officer, was a critical fact in the review. The Tribunal did consider his claims arising from past events in his military operations, and separately in his current status as a person not active in the military. Whether his request for an honourable discharge was not accepted, was not raised as a basis of any claim to fear harm. Ground three is not made out.

Conclusion

In all, the applicant’s grounds and submissions do not reveal jurisdictional error in the Tribunal’s decision. Absent such error, the application is to be dismissed. I will make the appropriate order.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 11 August 2016