FEDERAL COURT OF AUSTRALIA

SZTOF v Minister for Immigration and Border Protection [2016] FCA 60

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 12 November 2015. By those orders, the Federal Circuit Court dismissed the proceeding commenced by way of application filed on 22 November 2013, with costs.

2    The application before that Court was for judicial review of a decision of the then Refugee Review Tribunal made on 30 October 2013, affirming the decision made by a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

3    The appellant is a citizen of Pakistan and was born in the Ditpani village of Swat.

4    The appellant was represented by counsel before the Federal Circuit Court but had no legal representation before me.

5    At the beginning of the hearing of the appeal, the appellant applied for an adjournment on the basis that he had had difficulty obtaining legal advice. The Minister opposed that application. I refused the adjournment because the appellant had been on notice of the date of the appeal since 10 December 2015 (and he had known of the appeal itself for a month longer than that given that the judgment was dated 12 November 2015 and the appellant had filed a notice of appeal on 23 November 2015); although the appellant had made some efforts to obtain legal advice his efforts had been unsuccessful and there was nothing to indicate that an adjournment would or might lead to his position being improved; and no prior notice of the adjournment application had been given to the first respondent or to the Court.

Grounds of appeal

6    Subject to one matter, the grounds of appeal to this Court are the same as the amended application for judicial review in the Federal Circuit Court and are in the following terms:

1.    The RRT has failed to apply section 430(1) of the Migration Act to the applicant’s claims pursuant to section 36(2)(aa) of the Migration Act.

Particulars

a.    The reasons for refusing the applicant’s claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

b.    The reasons failed to set out the reasons for the decision, the findings on any material questions of fact or to refer to the findings on any material questions of fact upon which the decision was based;

c.    Section 430(1) of the Migration Act imposes mandatory requirements on the decision maker.

d.    A failure to comply with the requirements of section 430(1) of the Migration Act may amount to jurisdictional error: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108.

2.    The RRT has failed to deal with the full integers of the applicant’s claim pursuant to section 36(2)(aa) of the Migration Act.

Particulars

a.    The reasons for refusing the applicant’s claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

b.    The applicant squarely raised a claim that the applicant may be killed not as a result of his political affiliation but as “collateral damage” in attacks targeting others [CB 197] and elsewhere as a result of the general security situation in Pakistan [CB 62; 148; 190 and Transcript, page 24];

c.    The failure to deal with the squarely raised claim under the complementary protection provision amounts to a failure to exercise jurisdiction.

3.    The RRT has applied the incorrect test pursuant to section 36(2)(aa).

Particulars

a.    The reasons for refusing the applicant’s claims under section 36(2)(aa) of the Migration Act are confined to paragraph [22] of the decision;

b.    The Tribunal took into account unspecified findings of fact outlined elsewhere in the decision – some of which were irrelevant to the complementary protection criterion – and imported into its analysis the requirement for the applicant to demonstrate that the motivations of his persecutors conform with the Refugee Convention.

c.    The failure of the Tribunal to apply the correct test amounts to jurisdictional error.

The matter to which I have referred at the beginning of this paragraph is that, on 28 January 2016 there was provided to the Registry, on behalf of the appellant, a document purporting to add a further ground as follows:

“Ground One, ground two, Ground Three are ignored by Federal circuit court.

1)    The RRT has failed to provide me with pushto interpreter for which I requested in RRT. In decision the RRT judge has mentioned that there is difficulty for applicant to understand the question and was not able to express his views according to the RRT judge.

2)    According to the RRT and federal circuit court decision for collateral damage is not applied to my case. Because in Karachi MQM people and PUSHTONS are living in separate places and have totally different complexion in face, so the MQM people can not come [t]o pushton dominated area only pushtons can come and can harm me.

7    In circumstances where the appellant had his adviser present before the Tribunal, where the transcript of the Tribunal hearing is in evidence and contains no reference to the question of a Pushto interpreter or to difficulty understanding a question, where the appellant was represented before the Federal Circuit Court by experienced counsel and where additional facts would be required to be adduced, I refused leave to rely on proposed additional ground 1. As to proposed additional ground 2, it finds no basis in the language used by the Tribunal in its reasons. “Collateral damage” is referred to in the reasons of the judge of the Federal Circuit Court but only to conclude that the appellant made no separate claim that he was at risk of harm as collateral damage in Pakistan: see [61]-[62] of the reasons for judgment. Further, proposed additional ground 2 may also involve the tendering of additional factual material, which was not before either the Tribunal or the Federal Circuit Court. Again, I note that the appellant was represented before the Federal Circuit Court by experienced counsel. In these circumstances, I refused leave to rely on proposed additional ground 2.

8    The reasons of the Tribunal referred to in the particulars were as follows:

22.    Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion in s. 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa). Taking into account the above findings, the Tribunal is not persuaded that there are 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 that as a consequence of Taliban interest, terrorist attacks or ANP-MQM violence, or the authorities, that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out or he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa).

    (Original bold type.)

The submissions of the parties

9    The appellant filed no written submissions. In oral submissions the appellant said that it was not safe in Karachi, and people from his village had been assassinated there.

10    In his written submissions, the Minister adopted the reasons of the judge of the Federal Circuit Court. As to grounds 1 and 3, the primary judge held that the reference by the Tribunal to its earlier findings was a legitimate manner in which it could provide reasons for its findings. Her Honour said it was well established that the Tribunal was entitled to consider complementary protection by reference to its previous findings: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [32]-[34]. In the present case, her Honour found that the claims of the appellant that he feared harm at the hands of the Taliban because of his perceived involvement and political profile with the ANP were rejected by the Tribunal. The Tribunal did not accept the appellant’s claim that he had been targeted by the Taliban in the past, or that his past activities had provided him with a profile with the ANP that put him at a real chance of harm in Pakistan. Further, the Tribunal did not accept that the appellant was of any specific interest to the Taliban. The Tribunal found that the roles of the appellant and his father in connection with the ANP were relatively small, although, it accepted that the appellant may have attended some ANP meetings with friends and informed people in Karachi about the problems the Pashtun people faced. Having set out a number of other adverse findings in respect of the appellant’s claims, the primary judge held that the Tribunal was entitled to rely on those adverse findings in respect of the appellant’s claims in considering whether he met the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). Her Honour also held that the reasons for the findings by the Tribunal were clear from its consideration of the appellant’s claims and its findings in respect of those claims. The Tribunal applied the correct test and its findings in respect of complementary protection were open to it on the evidence and material before it and for the reasons it gave. Those reasons were the adverse findings that had been made in respect of the Tribunal’s consideration of the appellant’s claims at large, in particular that he was not at risk in Pakistan for any reason.

11    As to ground 2, the primary judge analysed and considered the instances said to constitute the claim that the appellant would be killed not as a result of his political affiliation with the ANP but as collateral damage in attacks targeting others as a result of the general security situation in Pakistan and held that she was not satisfied that there was any claim that squarely arose on the evidence and material before the Tribunal to suggest the appellant was making a separate and distinct claim to fear harm in Pakistan as “collateral damage”. Her Honour referred to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58]-[60]. See also at [68]. Her Honour held that the specific reference to “collateral damage” by the appellant’s migration agent was in the context of the alleged persecution by the Taliban of ANP members.

Consideration

12    In my opinion, given the findings made by the Tribunal at [10]-[20] of its reasons, which formed the basis for the Tribunal’s conclusion at [22] in relation to the alternative criterion in s 36(2)(aa), no error has been shown in the reasoning of the judge of the Federal Circuit Court in respect of grounds 1 and 3.

13    The findings are that the appellant’s role, and his father’s role, and certainly the appellant’s role after he relocated his business, were relatively small; that the appellant did not have strong political views nor was he actively engaged in politics; that he did not have a profile in the past and his activities were not such that there was a real chance that he would be killed or otherwise persecuted because of his past ANP involvement. The Tribunal also found that even if the appellant continued with the ANP, the chance he would be seriously harmed by the Taliban or other terrorist groups for reasons of his actual or imputed political opinion or because he was Pashtun was remote. The Tribunal did not accept that the appellant had been identified as an ANP political figure from Swat or a local ANP leader in Karachi or that he would be identified as such in the future. The Tribunal did not accept that the appellant had been specifically targeted in the past because of a combination of his ANP membership, his association with ANP members, his own political activities and the active taking down of the body of his friend who had been killed in February 2009 by Taliban gunmen.

14    The Tribunal said that given the number of pro-ANP Pashtuns (estimated to be the overwhelming majority of the 5 million Pashtuns in Karachi), it did not accept that there was a real chance that if the appellant returned to Karachi now or in the reasonably foreseeable future he will be singled out to be killed or otherwise persecuted by the Taliban because he was a supporter or member of the ANP. Neither did the Tribunal accept, given the number of pro-ANP Pashtuns versus the number of Taliban attacks, that there was a substantial chance the appellant would be killed or otherwise persecuted by the Taliban because he was an ANP supporter or member. Neither did the Tribunal accept, given the number of pro-ANP Pashtun versus the number of MQM attacks, that there was a substantial chance the appellant will be killed or otherwise persecuted in the context of the violence between the ANP and MQM.

15    The Tribunal did not accept that the appellant or his family had in the past come to the adverse attention of the Taliban or been targeted or harmed by them for reason of actual or imputed political opinion, family or other associations, or any other reason. Neither did the Tribunal accept that the appellant had come to the adverse attention of the authorities or would suffer at the hands of the authorities.

16    In light of the claims that were made, I see no error in the Tribunal dealing as it did with the complementary protection claim at [22] of its reasons and I see no error on the part of the primary judge in this respect. What the Tribunal did was to take into account its earlier findings and then apply the alternative criterion to the claims of Taliban interest, terrorist attacks ANP-MQM violence or significant harm from the authorities.

17    As to ground 2, no error on the part of the judge of the Federal Circuit Court has been established. In my opinion, her Honour did not err in analysing the alleged claim that the appellant might be killed as “collateral damage” in attacks targeting others and elsewhere and in concluding that that claim had not been raised.

18    What the appellant said in oral submissions in support of his notice of appeal does not suggest jurisdictional error on the part of the Tribunal or error on the part of the primary judge but does no more than express the appellant’s disagreement with the Tribunal’s conclusions.

Conclusion

19    The appeal should be dismissed. As to costs, the appellant submitted that he did not presently have the cash to pay the costs. I do not regard that as a reason not to order that the appellant pay the first respondent’s costs. The appeal should be dismissed with costs.

Associate:

Dated:    8 February 2015