Aca17 v Minister for Immigration

[2019] FCCA 3133

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3133

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (Class XD) visa – whether the Authority denied the applicant procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DA, 473DC, 433DD 473FB, 476

Cases cited:
DGZ16 v Minister for Immigration and Border Protection (2018) FCAFC 12

Applicant: ACA17

First Respondent: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 38 of 2017

Judgment of: Judge Street

Hearing date: 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Sydney

Delivered on: 31 October 2019

REPRESENTATION

The Applicant appeared via video link.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s cost fixed in the amount of $7,206.00.

DATE OF ORDER: 31 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 38 of 2017

ACA17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 16 December 2016 affirming the decision of a delegate not to grant the applicant a Temporary Protection (Class XD) visa (“Temporary Protection visa”).

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 9 April 2013. On 29 May 2016, the applicant applied for a Temporary Protection visa. The applicant claimed to fear harm by reason of belonging to the Turi tribe, being a Shia, an actual or imputed political opinion against the Taliban and by reason of being a young male from the Turi tribe who has lived in the West.

3. On 11 October 2016, the delegate found that the applicant failed to meet the criteria for the grant of a Temporary Protection Visa. On 13 October 2016, the Authority wrote to the applicant explaining that his application for a Temporary Protection visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, which provided the applicant an opportunity to put on submissions and new information. There was a page limit clearly identified in the practice direction in respect of the submissions. There was no page limit identified in respect of the new information.

4. The applicant’s representative provided submissions dated 23 November 2016 on behalf of the applicant. . Those submissions correctly identified that the submissions should be no longer than five pages but took issue with the adequacy of that opportunity. It is apparent that the submissions then attached detailed new information and that the submissions themselves did not exceed five pages.

5. The Authority, in its reasons, identified the background to the application and had regard to the material provided by the Secretary under s 473CB of the Act.

6. The Authority expressly referred to the applicant’s submissions and identified that they contained new information. The Authority expressly identified the whole of the limits of s 473DD of the Act. The Authority found that the new claim in relation to the applicant being a Turi was new information. The Authority was satisfied that there were exceptional circumstances to justify considering that information.

7. The Authority referred to the links to country information included in the applicant’s submissions, which were correctly identified as being new information. The Authority identified that none of the links post-dated the delegate’s decision.  The Authority identified that there was nothing to identify why the links were credible information. In these circumstances, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information in relation to country information and the links.

8. The Authority identified the applicant’s claims. The Authority referred to the applicant’s claim to be a Pashtun Shia from the Turi tribe from a particular village in the upper Kurram district in the Kurram Agency. The Authority referred to the applicant’s claim regarding an incident in 2007 in which he was in a car or bus travelling in Pakistan which was stopped by the authorities. The applicant was not physically harmed during the incident. The Authority also referred to the applicant identifying two incidents which allegedly took place in 2007, two to three months apart. The applicant also claimed the most recent occurred in early-2013 after the applicant returned from Abu Dhabi to his home region. The applicant alleged he was driving when the Taliban started shooting at the cars ahead. The applicant alleged that he was told by government officials to turn around. The Authority referred to the applicant’s claim that and nothing else happened to him after returning to Pakistan from Abu Dhabi.  The Authority also noted that from 2008 to November 2012 the applicant worked and lived in Abu Dhabi. The applicant claimed that there was danger for him everywhere because of the enemies of the Shia.

9. The Authority identified the relevant law.

10. The Authority accepted that the applicant is a member of the Turi tribe.

11. The Authority referred to the two incidents identified by the applicant. The Authority identified that there was no reference to these incidents in the applicant’s Temporary Protection visa application which was completed without professional assistance. The Authority also noted that the applicant had indicated, in a May 2013 bio data interview, that he had left Pakistan because of the security situation and did not mention the particular incidents. The Authority identified discrepancies in the applicant’s evidence in relation to these two incidents. The applicant claimed in his Temporary Protection visa interview that the two incidents occurred around 2007 and took place about two to three months apart. Yet, in the entry interview the applicant claimed the first incident occurred approximately 12 years ago and the second three months ago.

12. The Authority took into account the time that may have elapsed in relation to the discrepancies in the applicant’s evidence. The Authority did not consider that this time could account for the great difference between an event claimed to have occurred approximately eight years ago before his departure for the United Arab Emirates (“UAE”) and an event claimed to have occurred just under four years ago after he returned from the UAE to Pakistan.

13. The Authority was prepared to accept that one or two such incidents had occurred in 2007. Having regard to the inconsistencies in the applicant’s evidence, however, the Authority did not accept that a similar incident occurred in the brief period during which the applicant resided in Kurram Agency after returning from the UAE in November 2012 and before leaving Pakistan in early 2013.

14. The Authority referred to the applicant’s evidence as to why he was obliged to leave the UAE and that he had been employed there as a driver. The Authority referred to country information in relation to the Taliban and the security situation in the applicant’s home region. The Authority referred to the improvement in the security situation and noted that Kurram Agency was less affected by violence than other parts of Pakistan. Having accepted that the applicant was stopped but unharmed on two occasions by attacks by the Taliban or other Sunni militant groups in approximately 2007, the Authority did not accept that a similar incident occurred in the brief period during which the applicant returned from Abu Dhabi to Pakistan before travelling to Australia.

15. The Authority noted that the applicant has not claimed that he or his family have experienced any other incidents of harm at the hands of the Taliban or other Sunni militants on the basis of their identity as Shias or Turi Shias  in Pakistan. The Authority also noted that the applicant had not claimed that he or members of his family have been targeted by the Taliban or any Sunni militants on the basis of their identity as Shias from their home region or their membership of the Turi tribe.

16. The Authority referred to country information and assessed a low risk of sectarian violence for most Shias in Pakistan. In considering the chance of harm to the applicant as a Shia Muslim from the Turi tribe from his home region, the Authority weighed reports of violence in the country information which suggested a reduction in sectarian violence and overall improvement in the security situation in the Kurram Agency and in the region where the applicant’s home area is located.

17. The Authority, having taken into account the country information and the low level of generalised violence in the Kurram Agency, as well as accepting that the incidents may occur in the applicant’s home region, was not satisfied that there is a real chance that the applicant would suffer serious harm in or near his home region on the basis of his identity as a Shia from his home region who is a member of the Turi tribe or as a result of the security situation in his home region.

18. The Authority was satisfied that the applicant can safely access his village by flying to Lahore Airport and travelling by plane or car to his home region. The Authority found that there is no evidence to suggest that unsuccessful Turi asylum seekers are targeted in attacks by the Taliban or other Sunni groups or any other group or person. The Authority was not satisfied that there is a real chance of harm to the applicant, now or in the reasonably foreseeable future, as an unsuccessful Turi applicant for protection who will be returning to a village in his home area after living in Australia, a Western country, for approximately four years.

19. The Authority considered whether the applicant, as a Shia from his home region from the Turi tribe and as a person who would be returning to a village as an unsuccessful Turi asylum seeker after living in Australia for approximately four years, faces a real chance of harm. The Authority was not satisfied that any combination of the applicant’s circumstances would combine to expose the applicant to a real chance of harm in or near his home village.

20. The Authority found that the applicant is not a “refugee” in accordance with the requirements of the definition in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. The Authority found that there were not substantial grounds of believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan from Australia, there was a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act.

21. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 6 January 2017. On 17 May 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit of evidence and submissions.

2. The applicant had earlier been represented by a legal practitioner who has withdrawn from the proceedings.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed he understood the nature of the hearing as explained by the Court. The Court also confirmed with the applicant that he had received the Court Book, and the applicant had read to him the submissions of the first respondent.

4. From the bar table, the applicant maintained that the current situation for him in Pakistan as a Shia was one in which his life would be put at risk and sought to refer to a recent incident which had occurred two weeks ago. This Court is not in a position to make fresh findings in relation to the applicant’s claims. An incident which occurred two weeks ago is not an incident that was before the Authority and, in that regard, is not capable of giving rise to any jurisdictional error by the Authority.

5. The applicant also indicated that he had taken up drinking which would cause him problems as a Shia Muslim on his return to Pakistan. There is no identification of the applicant having a drinking problem or making a claim that he feared harm because of a drinking problem on the material before the Court. No such claim fairly arises on the material before the Authority. In these circumstances, no jurisdictional error arises by reason of the Authority not considering a claim that did not fairly arise or mature before the Authority.

6. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The ground in the application is as follows:

   1. The Authority denied procedural fairness to the Applicant.

   PARTICULARS

   The Authority refused to consider the Applicant's request to make submissions that were more than five pages in length. The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.

Ground 1

1. Mr Johnson of counsel, on behalf of the first respondent, correctly drew the Court’s attention to the upholding of the validity of the practice direction in the decision of DGZ16 v Minister for Immigration and Border Protection (2018) FCAFC 12 at [107] which binds this Court. Accordingly, the assertion that the practice direction exceeded the powers of s 473FB of the Act in the particulars is without substance and is not capable of making out any jurisdictional error.

2. Further, it is apparent that the Authority provided the applicant with an opportunity to put on new information and submissions and that the applicant took advantage of that opportunity. The applicant’s representative correctly identified that the page limit related to the submissions and not to the new information. The submissions which were put forward included new information which identified that the submissions did not exceed five pages. It was apparent on the face of the attachments to the letter sent to the applicant by the Authority on 13 October 2016 that the page limit was in respect of submissions, not new information.

3. No practical injustice arises in the circumstances of the present case by reason of any misunderstanding, if there was one, by the  applicant’s representative as to the five-page limit in respect of submissions in the practice direction. Whilst the submissions did include a request to send more than five pages, that did not, in fact, occur. There is no reason to find that there was any denial of procedural fairness in the conduct of the review by the Authority.

4. The Authority does have a power in s 473DC of the Act which can be exercised to invite the giving of new information or to interview the applicant. No request was made to the Authority that it exercise that power in the letter dated 23 November 2016. In circumstances where the applicant was sent the communication dated 13 October 2016 with the practice direction and fact sheet, the absence of an express consideration of the power of s 473DC of the Act does not lack an evident and intelligible justification.

5. Part 7AA Division 3 and in particular s 473DA of the Act identifies that the Division is an exhaustive statement of the requirements of natural justice in law in relation to reviews conducted by the Authority. In these circumstances, the Court finds that there was no denial of procedural fairness to the applicant in the conduct of the review by the Authority. No jurisdiction error as alleged in ground 1 is made out.

6. Accordingly, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 October 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  20 January 2020