FEDERAL COURT OF AUSTRALIA

CPI16 v Minister for Immigration and Border Protection [2018] FCA 747

ORDERS

THE COURT ORDERS THAT:

1.    The appeal filed on 3 November 2017 is dismissed.

2.    The appellant is to pay the costs of the first respondent fixed in the sum of $6,439.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

THE PROTECTION VISA APPLICATION

1    The appellant is a citizen of Pakistan. He arrived in Australia in February 2010 on a student visa. When that visa expired, he unsuccessfully applied for a further student visa and thereafter remained in Australia unlawfully. On 11 December 2013, he lodged an application for a protection visa with the Department of Immigration and Border Protection (the Department). The claims the appellant made in support of that application were summarised by the primary Judge in his reasons for judgment (CPI16 v Minister for Immigration & Anor [2017] FCCA 2867 (CPI16) at [1]) as follows:

(a)    the applicant is a member of the Ahle-e-tashi, a prominent, influential, and financially successful Shia family in the Rawalpindi area in Pakistan;

(b)    his brother’s garment business was robbed and his brother was kidnapped by members of the Sunni extremist group Ahle-e-Sahaba sometime in early 2011. His family sold everything they owned in order to pay a ransom at the time (which prevented them being able to support his studies financially);

(c)    the applicant’s brother was subsequently killed in a shooting incident carried out by Sunni extremists from a group known as Sipah Sahaba in November 2011;

(d)    the applicant was the victim of a violent attack in Pakistan before leaving for Australia in 2010;

(e)    the applicant’s family have relocated from Rawalpindi and he has been told not to return by his father;

(f)    the applicant fears that he will be targeted by Sunni extremists if he returns to Pakistan because he is a member of a prominent Shia family who have received threats of harm and already had one family member killed.

THE PROCEDURAL HISTORY

2    In January 2015, a delegate of the Minister for Immigration and Border Protection rejected the appellant’s application for a protection visa. The appellant then applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for a merits review of the delegate’s decision. In August 2015, the Tribunal affirmed the delegate’s decision. Soon thereafter, the appellant applied to the Federal Circuit Court of Australia for a judicial review of that decision. In October 2017, the primary Judge dismissed the appellant’s application. This led, in turn, to the present appeal, which was lodged by the appellant in this Court on 3 November 2017.

THE GROUNDS OF APPEAL

3    The two grounds of appeal set out in the appellant’s notice of appeal are as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

(Errors in original)

4    The appellant did not file any written submissions prior to the hearing of his appeal. Nonetheless, when he appeared in person at the hearing of this appeal, he claimed that the Tribunal had not considered the evidence he did provide to it, but instead had focused on the evidence he had not provided. He also claimed that he provided all of his evidence to the Department at the time he made his application and the Department should have put that evidence before the Tribunal.

THE TRIBUNAL’S DECISION

5    The Tribunal rejected the appellant’s application because it did not consider the appellant was a credible witness and it therefore did not accept most, but not all, of his claims. The primary Judge summarised the import of the Tribunal’s findings on credibility in the following terms (CPI16 at [3]):

… the Tribunal found in particular that his delay in making an application for a protection visa, some of the inconsistencies in his accounts when discussing his claims, and his failure to provide documents in support of those claims that he had said that he could provide, all significantly undermined his credibility …

6    The primary Judge also summarised the effect that these credibility findings had on the appellant’s claims as follows:

(a)    “… the Tribunal did not accept that a number of the events claimed by the [appellant] had actually occurred … [including] a robbery and threatening telephone calls received in 2011” (CPI16 at [4]);

(b)    while “the Tribunal accepted that the applicant’s brother had died in November 2011 [it] did not accept that he was killed because he was a Shia or because of his prominence in the Shia community” (CPI16 at [4]);

(c)    “[t]he Tribunal was not satisfied that the [appellant] would be seriously harmed in Pakistan because he was a Shia, or a Shia from a prominent family in Rawalpindi, or a member of his deceased brother’s family” (CPI16 at [5]); and

(d)    while the Tribunal “accepted the [appellant’s] family had left Rawalpindi after their assets, including the family home, had been sold … [it] did not accept that they had left because they were under threat from a Sunni extremist group” (CPI16 at [5]).

7    Accordingly, the Tribunal found that the appellant did not satisfy the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). As for the complementary protection provisions of s 36(2)(aa) of the Act, the primary Judge summarised the Tribunal’s conclusions as follows (CPI16 at [7]):

The Tribunal noted that it had accepted that the [appellant] was the victim of a random attack with no known motivation before he came to Australia. However, it found that it was not a targeted attack but one of generalised violence, which is one faced by the population of Pakistan generally. Otherwise it applied its findings made in connection with the s.36(2)(a) criterion to its consideration of the complementary protection claims and found that there were no substantial grounds for believing that the [appellant] would be at real risk of significant harm for any reason, if he returned to Rawalpindi in Pakistan. For that reason, it found that the complementary protection criterion was not satisfied. Accordingly the Tribunal affirmed the decision of the delegate not to grant the [appellant] a protection visa.

THE PRIMARY JUDGE’S DECISION

8    In his application before the Federal Circuit Court of Australia, the appellant advanced three grounds of review. Those grounds, and the primary Judge’s reasons for rejecting them, were succinctly summarised in the primary judgment as follows (CPI16 at [11]–[13]):

First Ground

11.    The first ground in the application is that the Tribunal constructively failed to exercise its jurisdiction. This ground is explained in the particulars to relate to documents said to have been provided by the [appellant] to the Tribunal to corroborate his claims. The problem is that the [appellant] did not provide documents to the Tribunal to corroborate his claims and so the ground is entirely baseless.

Second Ground

12.    The second ground is that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Act. As I have observed, the Tribunal explained what it understood by the term “significant harm” in its reasons. That explanation, which is found at [79] of its reasons, is consistent with a proper understanding of that term. This ground too is baseless and is rejected.

Third Ground

13.    The third ground is that the Tribunal failed to comply with s.424A of the Act. That provision requires the Tribunal to give particulars to the [appellant] of information it considers would be the reason, or part of the reason, for the decision under review. The information said to give rise to this obligation is not identified in the application, and I can identify only information that was either given by the [appellant] for the purposes of the review, or information which falls within the general description of country information. As such, the information that … formed part of the reasons for the decision, fell within an exclusion to the obligation found in s.424A(3) of the Act. In other words, there was no obligation that arose under s.424A(1) and therefore no breach of that provision by the Tribunal.

9    Thereafter the primary Judge turned to consider two matters that the appellant had raised orally during the hearing before him. They were a claim that he had told the Tribunal that his brother was living in Denmark (CPI16 at [15]) and a claim that there were some variations in his evidence concerning dates (CPI16 at [17]). The primary Judge rejected both of these matters and dismissed the appellant’s application, noting that he did not consider that the Tribunal’s decision was “affected by jurisdictional error”.

CONSIDERATION

10    Before turning to consider the appellant’s complaints about the primary Judge’s decision, it is important to note, first, that this Court’s power to interfere with that decision is exercisable only if there is error apparent in it (see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [14] per Gleeson CJ, Gaudron and Hayne JJ). Secondly, it is to be noted that the appellant has not provided any particulars of the errors that he claims are apparent in the primary Judge’s judgment. Specifically, he has not particularised how the Tribunal acted in a “manifestly unreasonable way” (ground of appeal one); nor what “legal and factual errors” it had made and which the primary Judge did not consider. This lack of particulars makes it extremely difficult, if not impossible, to discern the precise nature of the appellant’s complaints as raised by his notice of appeal.

11    In addition to these two impediments, the first ground of appeal faces a further difficulty. The question of unreasonableness with respect to the Tribunal’s decision was not raised before the primary Judge. That being so, he requires leave to raise it for the first time on this appeal. The Minister has opposed that leave on the ground that no explanation has been provided as to why the point was not taken before the primary Judge and that, in any event, this ground has no merits and to grant it would therefore be futile. Unassisted by particulars, I have examined the pertinent part of the Tribunal’s decision (at [35]–[91]) and, having done so, I agree with the Minister’s submission that the Tribunal “clearly identified and engaged with the appellant’s claims to fear persecution and gave fulsome analysis and reasons for rejecting those claims”. I do not therefore consider that the Tribunal “acted in [an] … unreasonable way” such as to constitute legal unreasonableness as illuminated in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. It follows that this ground of appeal has no merit and leave to raise it in this appeal should be rejected.

12    The appellant’s second ground of appeal suffers most significantly from the lack of particulars that I have mentioned above. Having regard to the fact that the Tribunal’s decision record, including its attachment, comprises 16 pages and 116 paragraphs, it is almost impossible to discern what “legal and factual errors” the appellant is referring to in this ground. If he intended to refer to the concerns he raised orally at the hearing of this appeal, I am unable to see how those matters reflect any relevant error in the Tribunal’s decision. In this respect, it is to be noted that the Tribunal expressly stated in its decision record (at [57]) that it had not taken account of the appellant’s confusion over dates in making its credibility findings. In any event, from my reading of the primary Judge’s consideration of the Tribunal’s decision, I am unable to detect any such errors unaided, as I am, by any particulars. I do not therefore consider that this ground of appeal has any merit.

13    Since I am unable to detect any merit in either of the appellant’s two grounds of appeal, or the concerns he raised orally, his appeal must be dismissed. As well, he must be ordered to pay the Minister’s costs.

Associate:    

Dated:    24 May 2018