SZWBP v Minister for IMMIGRATON

[2017] FCCA 2168

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBP v MINISTER FOR IMMIGRATON & ANOR [2017] FCCA 2168

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Constitutional writ – protection visa – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: SZWBP

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 256 of 2016

Judgment of: Judge Street

Hearing date: 7 September 2017

Date of Last Submission: 7 September 2017

Delivered at: Sydney

Delivered on: 7 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 256 of 2016

SZWBP

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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 8 January 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan, and a Sunni Muslim Pashtun who arrived on Australia on 10 March 2011 on a student visa. The applicant lodged the application for protection on 18 October 2011.

3. The applicant claimed that he was a person from a particular village in the Khyber Pakhtunkhwa province in Pakistan. The applicant claimed that in 2010, Taliban militants moved into his home village after fighting with the Pakistan army. The applicant claimed that his father was an elder of the village and was involved in local defence committee meetings that led a group of villagers to resist the Taliban from the Taliban Movement of Pakistan (TTP). The applicant alleged that his father joined the Awami National Party (ANP) and founded an organisation opposed to the TTP called the Anti-TTP, or ATTP.  The applicant alleged they opposed and engaged in armed fighting with the Taliban.  The applicant also claimed that his uncle was killed by the Taliban when his father’s vehicle was attacked, and he was badly injured.  The applicant claimed that the Taliban militants then attacked him, because of his father’s position in the village.

4. The applicant claimed that his father went into hiding and that the applicant did not know his whereabouts. The applicant alleged that he was a moderate Muslim, and he opposed terrorism and war. The applicant claimed that the Pakistani government was corrupt, supported militants and the Taliban and was unwilling or unable to protect him.  The applicant feared he would be killed or harmed by the Taliban, specifically the TTP and militants due to his father’s actions, and because the Taliban targeted the applicant’s family.

5. The applicant attended an interview with delegate on 8 May 2012. The delegate found the applicant’s testimony surrounding his political opinion vague and unconvincing, but accepted part of the applicant’s evidence. The delegate found the applicant failed to meet the criteria under the Act for the grant of a visa, in a decision on 20 February 2013, refusing to grant the applicant a protection visa.

Review by first Tribunal

1. On 25 March 2013, the applicant applied for review. The applicant provided the Tribunal with a written statement of claims and submissions at 20 March 2013.  The applicant was invited and attended a hearing on 17 October 2014 to give evidence and present arguments. 

2. Following the hearing on 26 November 2014, the applicant provided the Tribunal with further documents, comprising a first information report, dated 10 March 2010 and its translation, and a first information report, dated 8 June 2010 and its translation. A differently constituted Tribunal affirmed the decision of the delegate on 9 January 2015.

Review by current Tribunal

1. Pursuant to orders made by consent in this Court on 26 February 2015, the matter was remitted to the Tribunal for a further consideration, on the basis that there had been erroneous tests applied in relation to whether the applicant could relocate.

2. The presently constituted Tribunal, on 21 October 2015, invited the applicant to attend a further hearing on 3 December 2015. At the applicant’s request, the hearing was changed to accommodate the applicant’s new residence, and the applicant attended the hearing by video conference on 3 December 2015. On 8 December 2016, the currently constituted Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. 

3. The Tribunal, in its reasons, identified the background of the applicant in the application for review.  The Tribunal set out the relevant law. The Tribunal found the applicant was a Sunni Muslim, Pashtun, from a particular village in the Khyber Pakhtunkhwa province. The Tribunal identified the applicant’s claims.

4. The Tribunal expressed concern in relation to the credibility of the applicant, first in relation to what was said to be inconsistent claims about harm from the Taliban. The Tribunal put to the applicant the inconsistency with his evidence as to the harm he and his family encountered from the Taliban. The Tribunal took into account the applicant’s response. The Tribunal also identified, putting to the applicant that his written statement made no mention of the two attacks on his family home. The Tribunal took into account the alleged explanation that he was talking from memory and had not explained everything. The Tribunal rejected those claims as well, because the statement was not brief and contains an account of events in some detail.

5. The Tribunal observed that if the applicant could mention in a statement that his father was attacked and injured badly, he could surely also put forward that the family home was attacked, if those events occurred. The Tribunal made reference to the applicant’s evidence to the delegate and asked the applicant amongst other things, to explain why to the delegate he mentioned only one attack on the family home and did not mention the alleged explosion in December 2010. 

6. The Tribunal also put to the applicant that in contrast to his evidence to the delegate, that his uncle was killed in the skirmish, when the Taliban fired shots at the family home, In the applicant’s evidence to the Tribunal, he said his uncle was shot by the Taliban in a separate incident, which occurred in June 2010 when his uncle was walking on the street. The Tribunal found that the applicant’s explanations did not explain the applicant’s evidence to the delegate that his father was not injured. The Tribunal did not accept that the applicant was feeling nervous at the time of the interview, such as would prevent the applicant from saying that his father was injured in that attack. 

7. The Tribunal then made reference to the applicant’s alleged reporting to the police, on that making of that first information report. The Tribunal made reference to the applicant having obtained two alleged first information reports. The Tribunal observed that the first in time first information report is dated 10 March 2010, and records the applicant’s advising police that while the family were asleep in their home on that day, they were suddenly awoken by the sound of an intense bomb blast. The Tribunal summarised what was said in that first information report and put to the applicant that it was inconsistent with his evidence to the Tribunal.

8. The applicant explained that the complaint had been made by his father. The Tribunal rejected the applicant’s explanation and found the applicant’s account to the Tribunal as to why the Taliban wanted to harm is family was inconsistent with the contents of the first information report, which gave different reasons for that.

9. The Tribunal also raised with the applicant that it had difficulty accepting that if these first information reports had been made in March and June 2010, when he was still in Pakistan, he seemed not to have been aware of them until some point of time in late 2012, when he finally produced them. The Tribunal did not accept that the applicant would be unaware of the existence of the two information reports until so long after they were made, which was when he was in Pakistan.

10. The Tribunal referred to the applicant’s evidence in relation to the departure from Pakistan. The Tribunal made reference to the applicant’s delay in their making of an application for protection in relation to whether he held a genuine fear at the hands of the Taliban.

11. Having considered the applicant’s claims and evidence cumulatively, the Tribunal held concerns about the applicant’s credibility, leading the Tribunal to find that the applicant was not a witness of truth, and that the account of events on which his protection claims are based is false.  The Tribunal disbelieved the applicant’s claim that the Taliban caused harm in his village, that his father joined others in a group to oppose them, that the applicant at times was with his father in the group, that the Taliban afflicted harm on the applicant and his family either before or after he left Pakistan, and that the Taliban holds an adverse interest in him or any member of the family.

12. The Tribunal made reference to the prevalence of fraud in Pakistan and found that the two first information reports did not overcome the Tribunal’s concerns in relation to the applicant’s credit. The Tribunal found that the contents of the first information reports were false, and the Tribunal did not give them any evidentiary weight. 

13. The Tribunal rejected the application’s claims to have suffered psychologically, including the claim that it was psychological or mental distress that caused him to stop his studies in Australia.  The Tribunal found that the risk of the applicant suffering serious harm as a Sunni Muslim Pashtun male in his native area in the particular province is remote.

14. The Tribunal disbelieved the applicant’s claims about his father’s activities and the Taliban inflicting harm on him and his family. The Tribunal found that because the applicant is not a witness of truth the Tribunal did not believe that the applicant truly wished to undertake work in Pakistan, and refraining from performing such work could in any way amount to serious harm. The Tribunal found the risk of the applicant suffering any serious harm in Pakistan is remote. The Tribunal found the applicant does not hold a well-founded fear of persecution based on any Convention ground. 

15. 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 to Pakistan there is a real risk the applicant would suffer significant harm. The Tribunal found that the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act, and affirmed the decision under review.

Hearing before this Court

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

2. The Court explained to the applicant that if satisfied the Tribunal’s decision was unlawful or unfair, the Tribunal’s decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. 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.

Adjournment application

1. From the bar table, the applicant made an application for an adjournment so that he could have more time to brief a solicitor. When asked by the Court as to why the applicant had not been able to obtain a solicitor given that he commenced these proceedings on 8 February 2016, the applicant provided no satisfactory response. The applicant had given no earlier notice of an adjournment application to the first respondent.

2. The adjournment was opposed by the first respondent. I am not satisfied that an adjournment would be of any utility in the present case, given the ample time that the applicant has had if he were able to engage a solicitor. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. It is for these reasons the adjournment was refused. 

Grounds

1. The grounds in the application are follows: 

   I. The Refugee Review Tribunal made a procedural mistake that the Tribunal did not understand in respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conciusions that it was not satisfied on each particular claim. The Delegates of the Minister for Immigration also wrongly refused my application for a Protection visa.

   2. In respect of each of those points of the claims made by me, the Tribunal was not satisfied that my claims were established. (Point numbers 38, 39, 41, 42, 43, 44, 45 and 47 of the Tribunal Decision). Each of those conclusions was reasonably open to the Tribunal on the evidence before the Tribunal but no grounds of review arise.

   3. The Tribunal in its decision at point number 39 tells about country information and strongly do not agree. There have been recent bomb blasts in City of Peshawar> Mardan and at Bacha Khan Universities Charsadda. The dates of the happening are 20 January 2016, 29 December 2015

   4. says that "The applicant was asked if he had any documents regarding his father and the ATTP  (Anti Tehreek -e- Taliban Pakistan). The applicant indicated that he had no time to collect these document. The applicant was given time after the hearing to produce any such documents.''

   In response to this I would say that I was not given enough time to get documents from Pakistan as it was difficult for me to get documents from government agencies. I requested the RRT to give me more time but I was not provided this opportunity.

   5. The Tribunal in its decision at Point number 47 mentions about complementary Protection Criteria. I do not think that the Tribunal has properly taken into consideration.

   6. The Tribunal in its decision at Point number 38. I am concerned about this point. It is and it was wide open to the world about what was happening in Karachi. Shia and Sunny killings was an everyday occurrence and even government supported militants were doing target killings. Two of my relatives named Khalid Khan and Sohail Bacha moved Karachi from my village for relocating themselves to save their skins in Karachi but were targeted and killed by TTP  (Tehreek-e- Taliban Pakistan) in 2012 I do not agree with this. This is totally one sided opinion of the Tribunal and I am appealing for this.

   7. I am not satisfied that answers during Tribunal interview were in fact properly understood by the Tribunal. I would request the Honourable Court to grant me an opportunity to provide the script of the interview CDs.

Applicant’s submissions from the bar table

1. From the bar table, the applicant sought to explain that in his first statement he had only provided limited information, that he intended to expand upon that on a later occasion. The applicant said that he had not had any legal assistance and was not sure what to write and observed that his statement had been used against him, including what he had failed to mention.

2. The Tribunal made adverse credit findings in relation to the applicant that were subject of cogent and rational reasons, and which were open on the material before the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification. It was open to the Tribunal to identify inconsistencies in relation to the applicant’s statement and the applicant’s other evidence. It was not unreasonable for the Tribunal to use the applicant’s statement in assessing the applicant’s credibility. This Court does not have power to revisit the facts or make fresh findings in respect of the applicant’s claims. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Ground 1

1. In relation to ground 1 of the application, on the face of the Tribunal’s reasons, the Tribunal understood the applicant’s claims, and comprehensively addressed the applicant’s evidence and made dispositive findings that were open to the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with is obligations of procedural fairness in the conduct of the review. It is not apparent that any procedural mistake was made by the Tribunal or any misunderstanding by the Tribunal of the applicant’s claims. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, it is difficult to understand the nature of the error that is alleged. For the reasons already given, there was a logical and rational basis for the Tribunal’s findings. Further, the adverse findings cannot be said to be unreasonable. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, it was a matter for the Tribunal to determine what country information the Tribunal accepted. Ground 3 does not identify any jurisdictional error.

Ground 4

1. In relation to ground 4, at the time that the applicant was invited to attend a hearing, the invitation letter identified to the applicant that the Tribunal was unable to make a favourable decision on the information currently before it. There is no evidence to support the suggestion that there was any request by the applicant for more time to provide further documents.

2. Further, it is apparent, in the present case, given the history of the matter and from the earlier differently constituted Tribunal, that the applicant had ample time to obtain further documents in the circumstance of the present case.  It is not apparent that there was any request by the applicant to the Tribunal for more time, and I do not accept that any such request, on the evidence before the Court, was made by the applicant. The applicant was given ample opportunity to put material before the Tribunal. In substance, ground 4 invites the Court to engage in a merits review. This Court does not have power to review the merits. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, it was open to the Tribunal to take into account its findings in relation to the applicant’s claims under the Refugees Convention in relation to its findings in respect of complementary protection. The Tribunal correctly identified the relevant law in relation to complementary protection, and made dispositive findings in respect of the applicant’s claims. No jurisdictional error is made out by ground 5.

Ground 6 

1. In relation to ground 6, the applicant takes issue with the Tribunal’s findings in relation to country information. It was a matter for the Tribunal to determine what country information the Tribunal accepted. Further, it was open to the Tribunal to take into account the DFAT assessment, and it was not unreasonable for the Tribunal to do so. No jurisdictional error is made out by ground 6.

Ground 7

1. In relation to ground 7, there is no identified misunderstanding of the applicant’s evidence. This ground in substance, reflects a disagreement with the adverse findings made by the Tribunal. For the reasons already given, this Court has no power to make fresh findings of fact, nor does the Court have power to set aside the Tribunal’s decision on compassionate grounds. To the extent that ground 7 refers to the applicant obtaining copies of CDs, the applicant has been afforded ample opportunity to obtain a transcript in support of the application for review if he wished to do so. The applicant was given an opportunity to put on evidence by 19 May 2016, but failed to do so.  Ground 7 fails to make out any jurisdictional error. 

Conclusion

1. As the application fails to make any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017