Aic18 v Minister for Immigration - [2019] FCCA 2103

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIC18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2103

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD

Applicant:

AIC18

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 39 of 2018

Judgment of:

Judge Vasta

Hearing date:

18 June 2019

Date of Last Submission:

18 June 2019

Delivered at:

Adelaide

Delivered on:

18 June 2019

REPRESENTATION

Solicitor for the Applicant:

Mr H. Smart

Solicitors for the Respondent:

Sparke Helmore Lawyers

ORDERS

The name of the First Respondent be amended to read Minister for Immigration, Citizenship & Multicultural Affairs.
The Application is dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceedings in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 39 of 2018

AIC18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 11 January 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the Applicant, AIC18, a Protection Visa. On 23 January 2018, the Applicant launched proceedings in this Court to review that decision. On 30 April 2018, the Applicant amended his application.
The background to this matter is this. The applicant is a Hazara Shia from Quetta in Pakistan. From 2003 to 2010, he lived in Karachi. He worked there as a 3D animator. While he was in Karachi, he claimed that he experienced frequent degrading comments about his Shia faith which turned into direct threats to his life.
He claimed that members of a Sunni extremist group, Ahl-e-Sunnat-wal-Jumaat (“the ASWJ”), threatened and followed him. He received written threats which refer to Shia Muslims as Kaffirs and warned him to leave the area or be killed. As a result, he quit his job in Karachi and returned to live in Quetta.
In Quetta, he taught graphic design at a local private business and worked as a graphic designer. As a Shia Hazara living in Quetta, he continued to face threats to his life and was forced once again to quit his job. He claimed that he narrowly escaped a bomb blast at a pool hall which killed many Shia Hazaras in Quetta in January 2013.
He said that his cousin was killed in this incident and after this, his family decided to arrange for him to come to Australia. He claims that if he returns to Pakistan, he may be killed by Sunni extremist groups, including the ASWJ and its militant wing, LeJ, LEL or TTP. He said that he cannot relocate to another area in Pakistan and he would not be safe in any location due to the security situation. His Shia Hazara identity would expose him to further risk of persecution and discrimination because he is readily identifiable as a Hazara due to his distinctive facial features.
He said that he previously relocated to Karachi and was exposed to danger and threats there, so believes he could not relocate anywhere else and he also claimed that he lost his Pakistani National Identity Card during his travel to Australia.
The IAA had to look at a number of aspects of this claim and they did so in a very thorough manner.
The IAA did have some doubts as to his general credibility because of questioning that the delegate had asked of the Applicant as to whether a person whom he called a friend “A” was, in fact, his brother, who, was a person known by the letter “I”.
The Department was of the view that “A” and “I” were the same person; “A” being a person who lives in Australia. The Applicant claimed that “A” and “I” are separate people and “I”, his brother, is still in Pakistan. Whilst the delegate was not particularly convinced of this, that aspect had really nothing to do with the true state of his claims and so the IAA have mostly ignored it, though did say that they did have some trouble generally with his credibility.
The IAA went through the claims the Applicant made about his time in Karachi.
The IAA noted that the Applicant, even though he moved to Karachi for work and did not know anyone when he arrived there and was receiving a very low salary, worked for the same company for approximately seven years and that he stayed in the same rental accommodation with a number of Hazara colleagues who were also from Quetta for quite some time. He moved address in 2007 to a second address and stayed there until he left Karachi. So apart from a few weeks when he first came to Karachi to, as it were, find his feet, he only lived at two addresses during that seven years in Karachi.
The Applicant attempted to correlate the move of address with threats from the Sunni persons that he came into contact with, however, the IAA noted that the Applicant married in 2007 and it would be a strong inference that the Applicant moved residence to take up a life with his new wife rather than staying with the same people that he had been living with.
The Applicant said that he left Karachi because of the threats in 2010, however, the IAA also noted that the Applicant’s son, his firstborn son, was born in Quetta in 2010. It would make more sense that the Applicant’s wife went back to their home town where she had family to give birth to their child and that the Applicant followed.
The IAA noted that the applicant made no claims whatsoever about any persecution in Karachi from 2003 to 2010 when he first arrived in Australia and was giving his story at his arrival interview. When one takes into account that the Applicant did not make any mention of these at the first opportunity that he had, that ostensibly he seemed to have a stable life in Karachi, only having the two addresses, that seemed to also correlate with his marriage, and that he left Karachi to go back to Quetta in 2010, the IAA was not satisfied that these threats that the Applicant spoke about did actually occur.
In summary, the IAA found. at paragraph 40. that:
…I do not accept that the applicant experienced any particular difficulty establishing himself in Karachi due to his Shia Hazara identity or for any other reason. I consider that the applicant successfully relocated to Karachi, a city where he did not, at least initially, have any local contacts, in order to secure employment in his field of expertise. I find that he secured accommodation there without any significant difficulty.
The IAA then looked at the events in Quetta. The IAA noted that the Applicant, whilst talking about things that occurred in Quetta, did indicate that he was not personally threatened but that members of extremist groups threatened all of the community. He said that there were bomb blasts and targeted killings of Hazaras that occurred and that the fact that there were bomb blasts was corroborated by independent country information.
At paragraph 44, the IAA noted:
The applicant did not provide any details of the threats or harassments in Quetta to which he referred to in his SHEV application. As is the case in relation to his evidence regarding events in Karachi, the applicant’s evidence relating to his interactions with Sunni extremists in Quetta, any harassment he experienced in Quetta, and his involvement in bomb attacks in Quetta, tended to lack detail…
The IAA considered it highly likely that the Applicant had embellished his claims in relation to his experiences in Quetta. The IAA was willing to accept that the Applicant attended the scene of the January 2013 bombing of the pool hall in Quetta, but did not accept that he was involved in any other incidents or that he was threatened or followed by Sunni extremist groups, or any other groups in Quetta, nor that he was harassed because of his Shia Hazara identity in Quetta or that he quit his employment in Quetta as a result of any threats or harassment related to his Shia Hazara identity.
The IAA did not accept the Applicant was actively sought by members of any Sunni extremist group for any reason at the time he left Pakistan. The IAA also had doubts as to the claim that the Applicant’s National Identity Card was lost en route to Australia.
The IAA then looked at the refugee assessment and did not accept that the Applicant was actively sought by members of any extremist group or any other group that wanted to do the Applicant harm. The IAA went through the country information as to what the Pakistani Government had done to address terrorism in Pakistan and what they have done to scrutinise the activities of groups such as LeJ, SSP and TTP.
However, the IAA then looked at the aspect that the Applicant is from Quetta in Balochistan and that that province had historically suffered from ethno-sectarian tensions and politically motivated violence; that militant groups in Balochistan are reported to target the Hazara community to a greater extent than other Shias in Balochistan, and when one looked at all of the country information, the IAA said that they were satisfied that there is a small but nevertheless real chance of harm to the Applicant as a Shia Hazara in the form of possible loss of life or injury as a result of sectarian attacks and the security situation in Balochistan.
However, the IAA then went to have a look at whether or not the Applicant could relocate within Pakistan. The IAA looked at the capital Islamabad, which is a city of almost 2 million people back in 2011, with a large Shia population including a Hazara community. The IAA looked at the DFAT information about the fact of the Haraza community there in Islamabad but also as to the number of attacks that had occurred in Islamabad and whether those attacks were motivated to, as it were, harm Shia Hazaras.
The IAA noted that DFAT reported in 2016 that Islamabad remained relatively safe for migrant Shia communities and the country information indicated that high-profile Shias such as doctors, lawyers, teachers, political and religious leaders have been targeted in fatal attacks by Sunni extremist groups. The IAA noted that the Applicant is an animator and graphic-designer who does not claim to have any profile as an activist or political or religious leader; simply, that he claims that he faces a particular risk of attack by Sunni extremist groups because he may be readily identifiable as a Shia Hazara due to his distinctive facial features.
The IAA accepted that the Applicant may be easily identified as a Shia Hazara but on the evidence before the IAA, they accepted that that evidence suggests that attacks on Shia Muslims in Islamabad are rare and there is no evidence of past attacks on Hazaras in Islamabad. The IAA went through all of what the Applicant had said about terrorism groups in Pakistan and the danger to him. The IAA noted the DFAT information on persons returning to Pakistan, however, noted that the Applicant had left Pakistan using his passport. At paragraph 71, the IAA said:
Having carefully considered the applicant’s individual circumstances and profile and the range of information before me, I am not satisfied there is a real chance of any other type of harm to him in Islamabad now or in the foreseeable future, including as a result of the security situation in Islamabad. I am not satisfied that any of the applicant’s circumstances would combine to expose him to a real chance of serious harm in Islamabad.
Therefore the Applicant did not meet the requirements of the definition of “refugee”.
The IAA then went through the complementary-protection criteria and really looked at whether the Applicant could relocate to Islamabad. The IAA went through all of the DFAT information regarding Islamabad and what the situation there was, including the fact that he was still in a minority group.
The IAA noted that the Applicant had 12 years of education and he had work in the graphic-design industry; that he has a range of skills relevant to employment and he had demonstrated considerable initiative and resourcefulness when he was living and working in Karachi, and also what he has done in Australia. The IAA accepted he had no family or other connections in Islamabad, and that there was information that suggested there was a Hazara community in Islamabad, though the submission had been made that simply having a community does not guarantee the Applicant would secure any form of support from that community. The IAA said at paragraph 87:
The applicant is a man in his thirties, he has not provided any evidence of any particular vulnerability, for example in the form of any medical condition or disability. I recognise that the support provided by family members or other connections may assist individuals relocating to a new city, however, having regard to the applicant’s range of skills, his demonstrated resourcefulness and adaptability, his age, language skills, his education, his demonstrated ability to live independently from his family, and the information discussed regarding accommodation and employment in Islamabad, I am satisfied he will be able to find suitable employment and accommodation, and to otherwise establish himself in Islamabad, notwithstanding his lack of family or other connections there.
At paragraph 89:
The information discussed above suggests that terrorist incidents in Islamabad are rare, with only three such incidents and one person killed as a result of terrorist attacks, reported in Islamabad in 2016. As discussed, Islamabad is reported to benefit from the presence of security forces patrolling the streets and controlling access to the city. Operation Zarb-e-Azb is reported to have resulted in a substantial reduction in serious crime throughout Pakistan.
Therefore the IAA concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country such as Pakistan there was a real risk that the Applicant would suffer significant harm. So therefore the complementary-protection criteria was not satisfied. Therefore the IAA affirmed the decision of the delegate.
There are two grounds of this application. The first ground:
Relying on incorrect information such as DFAT reports et cetera which undermined and prejudiced the Applicant’s claim.
It is clear when one goes through the IAA decision as I have done, that there was quite a deal of reliance upon the DFAT reports. It was the DFAT report that convinced the IAA that the Applicant should not relocate back to Quetta or anywhere in Balochistan, but also that the DFAT reports suggested that there would not be an unacceptable risk if the Applicant were to relocate to Islamabad.
The Applicant argues that the DFAT report is incorrect. Part of the DFAT report is that there is a Hazara community in Islamabad and that there have been no past attacks on Hazaras in Islamabad.
What the Applicant now says is that the DFAT report is wrong because there are no Hazaras in Islamabad and that is the only reason why there has been no attacks on Hazaras. To prove that the DFAT report is wrong, the Applicant relies upon a signed affidavit from a person called Syed Muhammad Raza who says that he was a former politician, that he was aware of Hazara circumstances in Balochistan and that to his knowledge, there is no Hazara community in existence in Islamabad or Lahore.
Mr Raza claims that if there was such a community, that he would know about it, and if there is no Hazara community, then the level of targeted killing would be a higher risk because there is no Hazara community. He also pointed to an article which is reproduced in the court book which he is, apparently, quoted in, but he says that that is wrong.
The problem with that article is it was an article that is in the court book but it was not one to which the IAA had any reference. It was an article that was send to the IAA by the Applicant as new information, and the IAA found that it did not meet the criteria in s.473DD and, so therefore, did not take it into account.
Therefore whether this person by the name of Mr “Raza” agrees with the article or not, is not the point. The trouble with the submission, that the Applicant makes, is that it relies upon totally new information; information that was not before the IAA, and it assumes that what Mr Raza has said is absolutely and incontrovertibly true.
This Court is not a Court of appeal. It is a Court of review. The Court can only review what information was before the IAA. It is one thing to suggest that there is new information or further information that should have been before the IAA. There has been no explanation as to why this material was not before the delegate, let alone, before the IAA. It was well and truly known by that time.
The only excuse I have been given by counsel for the Applicant is that he, counsel for the Applicant, was not retained any earlier. That is no excuse at all. The point is that as a Court of review, I can only review what was before the IAA. What was before the IAA was the DFAT reports. The DFAT reports are quite categorical. There was a Hazara community in Islamabad.
If one goes to paragraph 86, it reads as follows:
…As discussed, the information before me suggests there is a Hazara community in Islamabad. The applicant’s representative submits that the mere presence of a Hazara community does not guarantee that the applicant would be able to secure any form of support from the community…
Therefore the Applicant’s own representative had confirmed that there was a Hazara community in Islamabad.
For the Applicant now to turn around and say that he has new information from a person whom the Court knows nothing about, a foreign affidavit that we do not know whether it was taken in English or in Urdu, or Farsi or any other language but it is in English here, and that the Court must then, according to the Applicant, ignore everything else and work upon that affidavit as being uncontrovertibly and incontrovertibly true, is a step that is way too far.
The Court can only look at what was before the IAA at the time, and not only was the information before the IAA not challenged, it was actually accepted as being correct. To then have as a ground that the IAA relied on incorrect information has absolutely no merit whatsoever. I find with regard to ground one that there is no jurisdictional error.
With regard to ground 2, that states that there was a:
Failure to properly assess the Applicant’s claim, as required by law and the rules of procedural fairness.
The Applicant, in the particulars and in the written submissions and the verbal submissions, did not elaborate as to what rules of procedural fairness had been breached, nor was the Applicant able to point to any part of the claim that was not properly assessed.
At one stage the Applicant pointed to this part of paragraph 62, where the IAA says:
… The applicant also referred, during the SHEV interview, to the election of the son of an LEJ leader to parliament. There is no independent evidence before me regarding this evidence.
The Applicant says that such short shrift given by the IAA means that they had not properly assessed the claim. Nothing could be further from the truth. They had the claim. There was nothing else that pointed to that claim being correct. Therefore that was all that the IAA needed to do.
Considering they had already talked about the Applicant’s general lack of credibility, such treatment by the IAA was an assessment of the claim. It was a proper assessment. All it did was result in a conclusion that the Applicant did not like. As I remarked during the course of the hearing, simply coming to a conclusion that the Applicant does not like does not mean that the IAA has failed to properly assess the claim.

The Applicant seemed to abandon most of the other points that he was making in the written submissions as to the failure to take into account relevant considerations, because he realised that the IAA had taken those considerations into account, just simply did not come up with the conclusion that he wanted.
Though, the Applicant did press a point that the IAA failed to assess properly, the whole situation of the Applicant’s relocation and the costs of renting the house in Islamabad and other aspects.
It seems to me, if one does read all of the decision, especially from paragraphs 77 through to paragraph 90, the IAA has well and truly grappled with the issue of relocation and has properly assessed it. The only trouble for the Applicant is that they came to a conclusion that the Applicant did not like. As I have already remarked, that does not mean that there has been a failure to assess the claim.
Therefore I find that there has been no jurisdictional error illustrated to my satisfaction.
I therefore dismiss the application with cost in the sum of $6,000.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 18 June 2019