DZAEK v Minister for Immigration and Border Protection

Federal Court of Australia|2017-03-14|Before: Mr P, Perry J

The appeal is dismissed.
The first and second appellants are to pay the Minister's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of the then Refugee Review Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellants protection visas. 2 The first appellant (the father) is the primary applicant for the visa. The second appellant (the wife) is the first appellant's wife and the third and fourth appellants (the son and daughter) are the first and second appellants' minor children. 3 Prior to the hearing, I raised with the parties rule 9.61 of the Federal Court Rules 2011 which provide that a person under a legal incapacity (which includes, relevantly, a minor) may start a proceeding only by the person's litigation representative. I indicated that I considered that this was an appropriate case in which to waive the requirement for a litigation representative to be appointed by the Court but that I would give the parties an opportunity to be heard at the commencement of the hearing. At the hearing, I made orders dispensing with the requirement under r 9.61 with respect to the son and daughter. 4 For the reasons that follow, the appeal must be dismissed.

2.1 The first Tribunal decision 5 The appellants are citizens of Pakistan. The father initially arrived in Australia in 2005 as a student, returning to Pakistan in 2006. He returned to Australia with his wife in 2006. Their children were subsequently born in Australia. 6 The appellants applied for protection visas in 2012. Their application was refused by a delegate and the Tribunal. However in February 2015 the Federal Circuit Court remitted the matter by consent to the Tribunal for reconsideration according to law. The remittal orders stated that the Tribunal had failed to consider whether there was a real chance that the daughter would suffer serious harm by reasons of her membership of a particular social group, namely girls who attend school in a particular region of Pakistan.

2.2 The second Tribunal decision 7 On 29 May 2015, the Tribunal affirmed the delegate's decision not to grant the appellants protection visas. It was this decision which was the subject of the decision in the Federal Circuit Court to which the current appeal relates. 8 The appellants made various claims. The father claimed to fear persecution or harm from a militant group based a few kilometres away from his family home, as well as a fear of persecution or harm from other militant terrorist groups, due to his occupation as a social/welfare worker, his links to the West, and the perception that he and his family may be considered as non-Muslim because he had lived in Australia for more than 10 years, and his children had been educated in Christian schools, for which Pakistan was unable to provide adequate protection. The appellants further claimed to fear persecution or harm from militant terrorist groups on the basis of the gender of the wife and daughter, the daughter's membership of a particular social group (girls who have attended or are attending schools), as well as other factors that might increase the family's profile. The father claimed that the family could not reasonably relocate within Pakistan to avoid this alleged persecution or harm, including because of the son's special needs by reason of his speech impediment. 9 The Tribunal made a number of adverse credibility findings against the father, including that he had failed to provide truthful information when completing his visa form and when questioned by the delegate in relation to criminal matters involving him (at [28]). The Tribunal also considered that the father had manufactured his evidence as to his university qualifications and his employment as a social worker in an attempt to embellish his claims for protection in Australia (at [32]). The Tribunal further concluded that the father "showed a considerable willingness to make unsubstantiated and exaggerated assertions regarding his own and his family's circumstances, particularly in relation to his children's education, the language they speak, his family's willingness to assist him upon his return to Pakistan, and his employment upon his return to Pakistan" (at [33]). 10 Those credibility findings notwithstanding, the Tribunal accepted (at [36]) that the appellants had a genuine fear of returning to the region of Pakistan where the father and wife were from (the appellants' home region), given the volatile and unpredictable nature of the region. The Tribunal also accepted their fear is particularly acute "given… the number of attacks on schools which, particularly girls' schools, are considered soft targets to further the militants' ultra-orthodox agenda." The Tribunal accepted that in an environment of such instability there are risks for the appellants, particularly the son and daughter who will need to attend school (at [36]). 11 Ultimately, however, the Tribunal did not consider it necessary to make definitive findings as to whether the appellants faced a real chance of harm in their home region of Pakistan. This is because the Tribunal was not satisfied that the appellants would face a real chance of suffering serious harm in other places within Pakistan, and that it would be reasonable for the appellants to relocate to another part of Pakistan (at [37]).

2.3 The decision of the Federal Circuit Court 12 There were two grounds of review in the Court below, namely: 1. That the decision of the Second Respondent was affected by jurisdictional error in that the Second Respondent asked itself the wrong question when determining the claims of the Fourth Applicant. Particulars (a) the First Applicant raised claims on behalf of the Fourth Applicant that required the Second Respondent to determine: (i) for the purposes of section 36 (2) (a) of the Migration Act 1958 (Cth) (the Migration Act), did the Fourth Applicant have a well-founded fear of being persecuted upon her return to Peshawar for reasons of her membership of the particular social group of girls who attend, or have attended, a school and/or a western school? (ii) for the purposes of section 36(2)(aa) of the Migration Act, where there is substantial grounds for believing that, as a necessary and foreseeable consequence of the Fourth Applicant being removed from Australia to Pakistan, there is a real risk that the Fourth Applicant will suffer significant harm? (b) The Second Respondent failed to consider the Fourth Applicant's claim and instead asked itself two incorrect questions: (i) Whether there was a real chance that either of the First Applicants two children will be abducted, killed or otherwise persecuted whilst attending school in Peshawar; (ii) Whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Second Applicant and Fourth Applicant being removed to Pakistan, that there was a real risk that they will suffer significant harm as a result of their gender. 13 In addition, in their outline of submissions the appellants raised a further claim, namely, that the Tribunal failed properly to consider the father's claim that his son suffered from a speech impediment or disorder that necessitated specialist therapeutic intervention (reasons below at [13]). 14 The Federal Circuit Court dismissed the application for judicial review of the Tribunal's decision on 19 July 2016. The primary judge considered the decision of the Tribunal in detail and concluded that there was no jurisdictional error in the Tribunal's consideration of the appellant's claims. Accordingly, the application was dismissed with costs.

3.1 Issues raised on the appeal 15 The appellants' sole ground of appeal as identified in the notice of appeal is that there was jurisdictional error in the Tribunal's consideration of the claims. However, it is apparent from the appellants' written submissions and oral argument, that they seek to advance three grounds, namely: (1) the Tribunal did not deal with the claim relating to the son's speech impediment and allergies; (2) relocation to other parts of Pakistan was not possible; and (3) the Tribunal failed to address an essential integer of the daughter's claim concerning membership of a particular social group, namely, that she feared harm by reason of her membership of a particular social group, being girls who attend or have attended a western school. 16 It will be recalled that the last of these grounds was also raised by the grounds of review in the Federal Circuit Court, while the first had been raised by the appellants in their outline of submissions below insofar as it concerned the son's speech impediment.

3.2 Further evidence on which the appellant sought to rely 17 Attached to the appellants' written submissions were several documents on which they sought to rely as evidence. These included the following: (1) a speech pathology assessment summary relating to the son dated 6 June 2016; (2) a letter from the South Australian Department of Allergy & Clinical Immunology dated 8 August 2016 informing the father and mother that an appointment had been made for the third appellant to attend an appointment; (3) an undated speech pathology assessment report which among other things indicated that the son had been assessed on 20 May 2015 and 10 June 2015; (4) a letter from a paediatrician at Royal Darwin Hospital dated 2 April 2015 relating to the son's speech impediment and allergies; (5) a document entitled 'Medication Instructions from Prescribing Doctor' dated 11 November 2014 relating to the son's allergies; and (6) a letter dated 5 March 2015 from a medical practice in Darwin concerning the son's allergies. 18 These documents were received into evidence subject to relevance. 19 In assessing whether these documents are relevant, it is important to emphasise that the jurisdiction of the Federal Circuit Court is limited to deciding whether the Tribunal's decision was made lawfully under the Migration Act 1958 (Cth) (Migration Act) , that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellants' visa applications must be assessed under the Migration Act, or if it failed to hear and determine their applications in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the Federal Circuit Court has jurisdiction to assess for itself whether the appellants satisfy the criteria for the grant of protection visa or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 240 [65] (Sackville J), 257 [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). 20 It follows that this Court cannot admit new evidence for the purpose of deciding whether or not it agrees with the factual findings made by the Tribunal unless that evidence bears on a jurisdictional error in the sense I have explained: M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (Crennan J); Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27] (Perry J). 21 All of the documents in question relate to the son's speech impediment or allergies. The first two documents postdate the Tribunal's second decision on 29 May 2015. The third document is undated. However, as it refers to an appointment on 10 June 2015, logically it must postdate the second Tribunal decision. It follows that these documents were not before the Tribunal and cannot therefore bear upon the question of whether the Tribunal fell into jurisdictional error. There is no evidence that the remaining documents were before the Tribunal. The father submitted that he had given the documents to his representative and that it would appear for unknown reasons that his representative did not give the documents to the Tribunal. However, even accepting that that was the case (on which there was no evidence), there is no suggestion that the evidence was not given to the Tribunal because of a fraud perpetrated on the appellants: cf SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE) at [49]-[52]). That being so, the fact that through the representative's negligence or by some other mishap the documents were not given to the Tribunal does not amount to a jurisdictional error that invalidates the decision: SZFDE at [53]. It follows that none of the documents are relevant to the appeal and should be excluded.

3.3 The claims relating to the third appellant's speech impediment and allergies 22 The appellants submitted that the Tribunal failed to consider the claims relating to the son's "Language Disorders and other health issues", namely, the son's speech impediment and allergies. However, the claim as to the son's speech impediment was specifically addressed by the Tribunal. In particular, the Tribunal described the father's claims with respect to his son at [79] as follows: 79. … The applicant claimed that his son has a problem with languages and also has a speech problem. When asked if he has been assessed by a speech therapist, the applicant stated that he will see someone on 22 April 2015. Although his son has previously had appointments they could not afford for him to attend because their Medicare was cancelled. The applicant stated that his son's primary school has provided them with a special teacher so he can obtain some competence in his speech. If the applicants returned to Pakistan the children would attend an English medium school because he has some difficulties with his education. In response to the Tribunal's comments that there are many English medium schools, the applicant stated that most of the schools do not have "special teachers". The applicant stated that his son has a speech impediment he has to go to a special school. The Tribunal commented that he has not previously claimed that his son needs a speech therapist or special teachers or schooling and the fact that he has only just made this claim is of concern. The applicant stated that his son was only able to see a General Practitioner and it has taken several months to obtain an appointment with the speech therapist. The representative undertook to provide documents regarding this issue. 23 After addressing the claims generally as to the impact of the son's and daughter's language abilities on the reasonableness of relocation, the Tribunal concluded with respect to the son's speech impediment that: 81. … The Tribunal does not accept the applicant's claims in relation to his child's speech impediment or the requirement that he have special teachers or special schooling. The Tribunal has been provided with no evidence indicating that his son suffers from a speech impediment or has any learning difficulties. In any event, even if his son does have some difficulties, the Tribunal does not accept that the child will be unable to access speech therapists or special teachers in Pakistan. Whilst the Tribunal accepts the applicant's wife's distress and concern for her children and her wish that her son can continue to play sport and participate in similar activities in Australia, the Tribunal is not satisfied that he will be unable to continue to have such involvement in Pakistan or that such factors mean that it is unreasonable for the applicants to relocate to a major city such as [specified cities]. 24 It follows, as the Minister submitted, that the Tribunal specifically considered the claim with respect to the son's alleged speech impediment. However, the Tribunal did not accept that he had a speech impediment, and even if he did, the Tribunal did not accept that this would mean that it was unreasonable for the appellants to relocate. Those findings were reasonably open to it. Ultimately therefore the appellants disagree with the Tribunal's factual findings which are not a basis on which the court can interfere with the Tribunal's decision. As such, I can see no error in the decision of the Federal Circuit Court that no jurisdictional error was apparent in the Tribunal's consideration of this claim. 25 As to the son's allergies, there is no evidence that any such claim was made before the Tribunal and therefore there is no error in the Tribunal not addressing it. The obligation upon a decision-maker is to consider only the claims (and their component integers) which are in fact made by an applicant to fear persecution or serious harm or which are otherwise apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] (Gummow and Callinan JJ (Hayne J agreeing at 408 [95])). There is no obligation on the decision-maker to engage in an independent analysis of material to discover potential claims which may have been made, but were not: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J (as his Honour then was)) (affirmed in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124). Nor for the reasons I have already given, is it open to this Court or the Federal Circuit Court to consider the appellants' visa applications afresh.

3.4 The relocation issue 26 The appellants take issue with the Tribunal's findings relating to relocation to other parts of Pakistan, including to either of two specified cities. In support of this, the appellants cited levels of violence, particularly against women, in those areas. As noted earlier, the Tribunal was not satisfied that there was a real chance that the appellants would face serious harm in all parts of Pakistan if they were to relocate. 27 However, the Tribunal expressly considered the appellants' submissions as to the level of violence in Pakistan if they were to relocate, including by reason of the gender of the wife and daughter, finding that: 64. The Tribunal has had regard to reports of violence and crimes referred to by the applicant. However, in the context of a large population, the Tribunal is not satisfied that the reports establish that the applicants would be the victims of such crimes if they returned to Pakistan and resided in places such as [the specified cities]. Having considered the applicant's and his family's circumstances, both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that they will be identified and targeted by …terrorist groups or individuals as a result of their membership of a particular social group of people who have lived in Western countries, returnees from Western countries, Pakistani citizens who have returned from a Western country as dual citizens who lived overseas for a long time, or any other connotation of this type of particular social group. Nor is the Tribunal satisfied that there is a real chance that the applicant's wife and daughter will suffer serious harm because of their gender and any associated membership of a particular social group of women or girls or any similar connotation of particular social group. The Tribunal is also not satisfied that the applicants will be imputed with an anti-Taliban or anti-extremist group political opinion or that there is any real chance that they will suffer serious harm for this reason if they relocate to another part of Pakistan… 28 Following its consideration of the reasonableness of relocation, the Tribunal concluded that: 86. The Tribunal also accepts that it will be concerning for the-applicant to live in a city which has experienced such attacks, given that there is evidence of bomb blasts, kidnappings, there is a[n]…. extremist groups presence in [specified cities], and there has been limited action by the authorities to counteract the threat of terrorism. However, as stated above, given the level at which these attacks occur, the Tribunal is satisfied the chance of the applicants being harmed in the context of these attacks is remote. The Tribunal does not accept that the fact that the applicant may be concerned for his safety as a result of such factors is such that they will have to modify their conduct or that it will affect their ability to obtain employment or accommodation in these cities. The Tribunal is not satisfied that such factors make it unreasonable for the applicant to live and work in [specified cities]. 87. The Tribunal finds, therefore, that there is not a real chance that the applicants will be persecuted for reasons of their membership of a particular social group, their actual or imputed political opinion, their ethnicity or for any other Convention reason, either individually or cumulatively, now or in the reasonably foreseeable future, in· another part of Pakistan, such as [specified cities]. Accordingly, the Tribunal finds that the applicants do not have a well founded fear of persecution if they return to Pakistan now or in the reasonably foreseeable future. 29 Ultimately therefore as the Minister submitted, the appellants seek to challenge factual findings made by the Tribunal on the topic of relocation, which is not a ground on which a court has jurisdiction to interfere where, as here, the Tribunal's findings were otherwise open on the material before it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2014] FCAFC 104 at [26] and [32].

3.5 The particular social group ground 30 Finally, the appellants submit, with respect to the daughter, that the Tribunal was required to ask two questions: For the purpose of section 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act), did the Fourth Applicant have a well-founded fear of being persecuted upon her return…for reasons of her membership of the particular social group of girls who attend, or have attended, a school and/or a western school? For the purposes of section 36(2)(aa) of the Migration Act, were there substantial grounds for believing that, as a necessary and foreseeable consequence of the Fourth Applicant being removed from Australia to Pakistan, there is a real risk that the Fourth Applicant will suffer. 31 As to the first of those questions, the appellants submit that the Tribunal asked itself the wrong question. Specifically, the appellants submit that the daughter's claim required the Tribunal to ask whether there was a real chance that she would be persecuted, or suffer harm, by reason of her attending, or having attended, a western school or a school. Instead, the appellants submit the Tribunal asked only whether the daughter was likely to be persecuted or harmed while she was attending school. The appellants therefore submit that the Tribunal failed to ask whether the fourth appellant is likely to be persecuted or to suffer harm if she was returned to her home region or relocated somewhere else within Pakistan by reason of her membership of a particular social group, being girls who attend or have attended a western school. 32 The Minister submits that the appellants' attack goes to the attribution of weight to the material by the Tribunal, which is solely a matter for the Tribunal. The Minister further submits that the Tribunal fairly and squarely dealt with each of the appellants' claims, and the findings it made were open on the facts. 33 As earlier mentioned, the Tribunal accepted that there were risks for the appellants, particularly their young children who will need to attend school, even though it was ultimately unnecessary for it to decide whether they faced a real chance of harm in their home region. This was because the Tribunal considered that the appellants could reasonably relocate to other regions within Pakistan where they would not face a real chance of serious harm. In this context the Tribunal considered claims "that there is a real chance that the [daughter] would suffer serious harm for reasons of her membership of a particular social group of girls who attend school" and the son's and daughter's membership of a particular social group of children "who attend or have attended schools" (at [44]). After considering the evidence and submissions, the Tribunal concluded first on the claim to fear harm by reason of attacks against schools as follows: 48. The Tribunal has considered the evidence and submissions in relation to this issue. The Tribunal accepts that the applicant and his wife are concerned about the education and welfare of their children and wish for them to continue their education in Australia. The Tribunal accepts that the children speak English and their parents wish that they will attend an English medium school. Although the Tribunal has accepted that the Taliban and extremist groups are opposed to education of girls, the Tribunal's own inquiries have not revealed any evidence of attacks against girls' schools or English medium schools throughout Pakistan. Despite the applicant's assertions as to there being evidence in relation to this issue, none has been provided. The representative, although providing considerable details of attacks against schools in FATA and Khyber Pakhtunkhwa, has not provided any evidence of attacks or threats against schools, including girls' schools, elsewhere in Pakistan. The Tribunal is not satisfied that there is any evidence that the Taliban or other extremist groups have been successful in targeting girls' schools, English speaking schools or schools with an association to the West elsewhere in Pakistan. 34 However, the Tribunal then went on to consider the claim that the (son and) daughter may suffer harm by reason of attending a western school or school as follows: 48. … Nor is there any evidence that the Pakistani government in any way discourages girls from attending school in Pakistan. The Tribunal is not satisfied that as a result of their attendance at schools in [specified cities], even if their parents choose to send them to an English speaking school, that they will suffer serious harm. The Tribunal is not satisfied, therefore, that there is a real chance that the third and fourth applicants would suffer serious harm as a result of their membership of a particular social group of children who attend or have attended school in Pakistan; girls who attend school in Pakistan or any other similar connotation of particular social group. Nor does the Tribunal accept the applicants assertion that his daughter would be "highly likely" to be killed, bombed, targeted for violence, or rape". The Tribunal does not accept that the applicant's daughter will be unable to attend school because of her gender and any associated particular social groups. (emphasis added) 35 It follows that the primary judge did not err in finding that the Tribunal had considered the claim that the daughter feared harm anywhere within Pakistan by reason of her membership of a particular social group, being girls who attend or have attended a western school.

CONCLUSION 36 For the reasons set out above, the appeal must be dismissed with the Minister's legal costs of defending the appeal to be paid by the first and second appellant as agreed or assessed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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