AKW18 v Minister for Home Affairs

[2018] FCCA 3646

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKW18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3646

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.473DC

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: AKW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 57 of 2018

Judgment of: Judge Vasta

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Perth

Delivered on: 29 November 2018

REPRESENTATION

Solicitors for the Applicant: Cathal Smith Legal Pty Ltd

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application in a Case filed 16 March 2018 is dismissed.

2. That the Application filed 31 January 2018 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 57 of 2018

AKW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 2 March 2018 Registrar Trott dismissed the Applicant’s application to this Court on the basis that the Applicant did not attend Court on the first court date. Registrar Trott acted pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), and dismissed the matter in default of appearance. In making a ruling such as that, this did not preclude the Applicant from coming back to this Court to argue that the matter ought be reinstated.

2. There are three aspects to such a claim that I must consider.  Firstly, I must look at the excuse or the reason for the applicant not attending Court on that day.  Secondly, I must look at what is the prejudice to the Respondent.  And, lastly, I need to look at whether or not the merits of the case are such to warrant consideration by this court of the argument, whether or not the argument is ultimately successful or not.  It is this last point that I must deal with first. 

3. The Applicant is a Shia Hazara national of Pakistan.  In January 2017, he lodged an application for a safe haven enterprise visa.  On 10 April 2017, a delegate of the Minister refused that application.  Because such was a fast track decision, the matter was in effect immediately referred to the Immigration Assessment Authority (“the IAA”) for assessment. 

4. The IAA was given all of the material that was before the delegate.  The IAA also was given a number of other materials to look at, and the IAA looked at their obligation pursuant to s.473DD.  They accepted some of that material and not others.

5. The IAA said this about the other information that it received that did not come from the Applicant.  At paragraph 4, the IAA said:

   4. I have obtained recent information about deaths of Shia Muslims as a result of sectarian violence in Pakistan. This information is more recent than similar information that was before the delegate, and more detailed than other information before the delegate relating to the situation faced Shias in Pakistan.  Having regard to this, and to the fluid nature of the security situation in Pakistan, I am satisfied that there are exceptional circumstances to justify considering the new information. 

6. The delegate went on to summarise the Applicant’s claims.  They are that he is a Shia Hazara, and a Pakistani citizen.  He said that he was born in Iran to Pakistani citizen parents of Afghan origin.  His family had no legal right to reside in Iran and were badly treated because of this.  In 2000 his father bought a home in Quetta in Pakistan in the Balochistan province, although the family continued to live in Iran. 

7. In 2006, the Applicant said he and his family moved to Quetta.  He said that he lived in Pakistan from around June 2006 until March 2007.  He then returned to Iran and lived there until June 2013, with the exception of brief periods of some months when he returned to Quetta for his engagement and marriage, and a number of shorter trips back to Quetta to visit his family.

8. He worked for one employer in Iran from approximately 2002 until 2013.  He worked mainly as a gas plumber and welder and in construction.  He said that extremist groups, mainly LeJ as well as others, were killing Shia Muslims in Pakistan.  He said Shia Hazaras were not safe in Pakistan. 

9. He said in 2012 two of his neighbours in Quetta were killed in a truck explosion close to his home.  Some of his relatives were killed when extremists attacked mourners in a Hazara cemetery in Quetta in 2012.  He said that he fears persecution throughout Pakistan due to his Shia Hazara identity, including his imputed political opposition to the Taliban and other religious extremists. 

10. He is particularly vulnerable due to his Hazara facial features, his accent and his name.  He said the Pakistani government is not willing or able to protect Hazaras.  He said if he relocates to Islamabad or Lahore he may face racism and danger from genocidal attacks on Hazaras.  Wherever the population of Hazaras increases attacks will happen.  He said his family has now left Pakistan and are living in Iran.  His brother has left Pakistan and is now resident in Sweden.

11. Without going into too much detail, the IAA did not give much credence to the claims of the Applicant.  The documentation and the history that he gave was often contradictory.  In the end, the IAA was satisfied that he was not born in Iran, he was born in Pakistan.  Nevertheless, even rejecting all of his claims, the fact is he is still a Shia Hazara.  It then becomes a question of whether, simply because of his ethnicity, does he fall within the refugee criterion, and if he does not, does he fulfil the complementary protection criteria.

12. There is little doubt that Shia Hazaras are a minority in Pakistan and have been targeted in sectarian violence.  It is clear that the Sunni majority do attack Shias, and Hazaras are a subset of the Shias.  Whilst a Shia may be able to hide the practise of their religion, the Hazaras cannot do so because of their distinctive facial features which does not enable them to hide any aspect of their ethnicity.

13. The IAA looked at all of the country information, and especially looked at the sectarian violence throughout Pakistan.  The latest report that the IAA had was extremely helpful to the IAA, as was the DFAT reports to which the IAA referred.  At paragraph 41, the IAA said this:

    41. The applicant’s home is in Quetta in Balochistan, a province that historically suffer from ethno-sectarian tensions and politically- motivated violence. DFAT reports that there up to 900,000 Hazaras in Pakistan, approximately 700,000 of whom are reported to live in and around Quetta.  Militant groups in Balochistan are reported to target the Shia Hazara community to a greater extent than other Shias in the province.  DFAT refers to reports from credible sources indicating the sectarian attacks in Balochistan declined in 2015 as a result of the successful targeting of prominent militant leaders, including the killing of two LeJ leaders, by security forces.  

    42. However, despite reports of recent reductions in the number of attacks on Hazaras and Shias in Quetta, and the general reports of a reduction in sectarian attacks on Shia Pakistanis as a result of operation Zarb-e-Azb and the National Action Plan, DFAT assesses that there remains a moderate level of sectarian violence in Balochistan, and reports that Hazara Shias continue to be a key target of militant groups. DFAT also assesses that there is a moderate level of generalised violence in Balochistan. Having regard to the evidence before me, I am satisfied that there is a small, but nevertheless real, chance of harm to the applicant in the form of death or serious injury as a result of sectarian attacks on the basis of his Shia Hazara identity in Balochistan.

14. The question then for the IAA to look at was whether that well-founded fear of persecution related to all areas of Pakistan.  Having found that it related to Balochistan, the IAA then looked at whether it related to the Punjabi district, but more specifically to Lahore.

15. At paragraph 46 it said this:

    46. Lahore’s population of almost 10 million people is predominantly ethnically Punjabi, although its demographics are reported to be changing, particularly as a result of the influx of a large number of Pashtun immigrants since the 1980’s.  Large Shia communities, including Hazara communities, are reported to exist in Lahore.  According to SATP data, the two most recent mass- casualty attacks on Shia Muslims in Lahore occurred in 2010 and 2011. In subsequent years, three fatal attacks on high profile Shias and the son of one of these men, have been reported in Lahore.  These were the shooting of a senior Shia lawyer in 2012, the shooting of a Shia medical professor and his son in 2013, and the shooting of a Shia political leader in 2013.  No deaths of Shia Muslims as a result of sectarian violence were reported in Lahore in 2014, 2015, 2016 or 2017 to 21 May 2017. The SATP data before me includes reference to the Hazara ethnicity of Shia victims of sectarian violence in Pakistan where this information has been reported.  SATP information about Shia deaths as a result of sectarian violence in Pakistan in the period from 2001 till 21 May 2017 does not identify any deaths of Shia Hazaras in Lahore.

16. The IAA then looked at the fact that the Applicant had actually never suffered any persecution, and certainly no physical violence, because of his ethnicity.  This had happened in all the times that he had travelled between Pakistan and Iran.  The IAA said this at paragraph 51:

    51. As discussed, although there is reported to be a large Shia population in Lahore, the evidence before me suggests that attacks on the community are rare.  I note that there are reports of actions taken by Pakistani authorities against Sunni extremists groups in Punjab and Lahore. Operation Zarb-e-Azb and the implementation of the National Action Plan represent a significant commitment on the part of the Pakistani Government to reducing terrorist and sectarian violence in Pakistan…

    …While I accept that violence incidents occur in Lahore from time to time, I am satisfied that the ‘lower levels of generalised and sectarian violence’ in Lahore, and the security situation in Lahore described by DFAT as ‘better than many other places in Pakistan’, are such that there is not a real chance of harm to the applicant, now or in the foreseeable future, as a result of the security situation in Lahore.

    53. I am not satisfied that there is a real chance of harm to the applicant in Lahore as a Shia Hazara, as a result of the security situation in Lahore, or as a result of any combination of his circumstances, now or in the foreseeable future.

17. Therefore he did not meet the refugee criteria. As far as the complementary protection assessment was concerned, the IAA had to look at realistically the reasonableness of the Applicant relocating to Lahore. 

18. At paragraph 61 the IAA said:

    61. I accept the Applicant does not speak Urdu.  DFAT advises that Urdu and English are official languages of Pakistan.  While I accept that the applicant may face a degree of difficulty in navigating some situations in Lahore as a result of his inability to speak Urdu, I am satisfied that his basic English language skills will be sufficient to allow him to find employment and accommodation, and to establish himself in Lahore.  I am not satisfied that any difficulty the applicant may face due to his inability to speak Urdu in Lahore will be such that it would be unreasonable for him to relocate to Lahore.

    …

    63. The applicant claims that his family have relocated from Pakistan to Iran.  His travel to Australia, and his travel between Iran and Pakistan over an extended period, suggests he is a person of some resourcefulness and resilience.  He has lived in Australia for approximately four and a half years.  He has demonstrated an ability to live independently from his family for an extended period of time in Australia, and a willingness to continue to live apart from his family, in Australia, if he was successful in obtaining his Safe Haven Enterprise Visa.

    …

    65. The applicant has not claimed he has any characteristics, such as health problems, any disability, or being of a very young or very old age, that might render him vulnerable and in particular need of family or other support in a new city…

19. The IAA then concluded that it would be reasonable for him to relocate to Lahore where the IAA found that he would face no real risk of significant harm.  Therefore the IAA affirmed the decision.

20. In the draft application, the ground had been drafted this way:

    1. The Immigration Assessment Authority failed to complete its statutory task and thereby fell into jurisdictional error by failing to take into account the most recent DFAT country information report on Pakistan available at the time of its decision.

21. Mr Glenister said that that ground really was, or should have been, that the IAA unreasonably failed to consider the exercise of its discretion in asking for the DFAT report. The Applicant relies on s.473DC which relevantly says:

    473DC  Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    …

22. The argument is that, whilst it is that the matter was referred to the IAA in April 2017, the IAA did not make a decision until 16 January 2018.  Whilst it is not known exactly when during that nearly nine month period the IAA got round to making the consideration that it had, the fact is that in September 2017, which would seem to be about four months before the IAA brought down its decision, DFAT released a new report into Pakistan. 

23. It was obvious that the IAA relied on the outdated DFAT reports and the argument is that the IAA should have made sure, pursuant to s.473DC, that it did use its discretion to get the newest report. That argument really presupposes that the IAA knew that there was another report. It was submitted to me that the IAA ought to have known about that new report.

24. It seems to me that when one reads paragraph 4, as I already have, that the IAA could not have known about that because the IAA was adamant in trying to get as much recent information as it possibly could because there was a fluid security situation and it wanted to know what the situation for Shia Hazaras was like in as recent a report as possible.  I cannot bring myself to make a finding that this was something that the IAA knew about and simply decided to ignore. 

25. It seems to me it was something that the IAA could not have known about, simply because of the way in which paragraph 4 has been written.  The question is though, should it have known about it.  I cannot answer that question because the internal workings of the IAA and how it interacts with the Department are unknown to me.  The IAA is meant to be an independent authority, but it is a question of whether those new information are matters that the Department simply as of course gives to the IAA.

26. Obviously the new DFAT report was not before the delegate.  It seems also that the Applicant at the time did not know about the DFAT report because the Applicant did not attempt to put that before the IAA at any time before the decision was made, and really it was only when Mr Glenister came into the matter, it would seem later in the way in which this matter has proceeded, that the existence of the new report became known. 

27. But in any event, even if the report should have been able to have been before the IAA, the question is whether or not the IAA acted unreasonably. 

28. To show that they acted unreasonably, it would be necessary to really show that the material in the report would so have changed the way in which this matter was looked at by the IAA.  I have had a look at the new report because Mr Glenister has annexed it to an affidavit that he has filed.  At paragraph 2.37 of that report it notes that:

    2.37 DFAT notes that there has been an increase in the frequency and severity of terrorist attacks across Pakistan since late 2016.  Between 13 and 16 February 2017, a series of separate incidents in Lahore (Punjab province), Quetta (Balochistan province), Peshawar (Khyber Pakhutnkhwa province) and Sehwan (Sindh province) killed at least 100 people and left several hundred others injured.  In response to these attacks, on 22 February, 2017, the Pakistan Army announced Operation Radd-ul-Fasaad (the successor to Operation Zarb-e-Azb), a nation-wide anti-terrorism operation in accordance with the NAP… Attacks continue to occur, such as a suicide attack targeting police in Lahore on 24 July 2017, which killed 26 people and injured more than 50 others.

29. The Applicant argues that this shows that the security situation in Pakistan, especially in Lahore, is now worse than it was when the IAA considered the Applicant’s situation.  However, the report does need to be seen as a whole.  There is nothing else that is in this report that seems to have changed the situation.  However, it is instructive that at the area looking at sectarian violence at 3.46 notes:

    3.46 Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence.  This risk can vary depending on geographic location…

30. And then, at 5.15, whilst it says that in Lahore, which is a city of around 10 million people, having a significant number of ethnic groups, particularly Pashtuns, it notes that there are few Hazaras or Turis in Lahore.  It also notes representatives of the Shi’a community told DFAT that Lahore and Islamabad were the safest parts of the country for Shi’a.  Even the Christian community told DFAT that the security situation has improved and that the government is genuine in its attempts to provide Christians with state protection.

31. When one looks at this overall, it seems that the situation is not really any different for Shi’a Hazaras and, when one looks at the situation of Shi’a Hazaras, the report that was relied upon by the IAA is the report that is extremely recent; and that there is nothing in the DFAT report of 1 September 2017 that really shows that the situation in regard to Shi’a Hazaras has changed at all. 

32. Therefore it seems to me that, even if the IAA did or should have known about this report, it was not unreasonable for them not to exercise a discretion to get that report.  But as I say, I do not believe that it even gets to that point because it has not been demonstrated to me that the IAA even knew about that report.

33. Therefore, I am of the view that if this were the matter that was before me, I would find that there was no jurisdictional error and the application itself would have been dismissed.

34. But I still have to look at what prejudice there is to the respondent if I were to grant the application to reinstate the matter.  There has been a fair concession by Ms Tattersall for the Minister that there really has not been any prejudice to the Minister. 

35. The final aspect is to look at the excuse that the Applicant has given to this Court as to why he did not turn up on 2 March when the matter was dealt with by Registrar Trott.  In an affidavit he filed in this court on 16 March 2018 he said:

    2. I lodged an application for judicial review on 31 January 2018.

    3. I did not know I had to appear at the Federal Circuit Court on 2 March 2018.  I never received a letter or any other communications indicating I had to attend court on this day. 

    4. I live in a share house with 7 other people.  It is possible any communications sent to me in relation to my Court date were misplaced. 

    5. I retained the services of the law firm Cathal Smith Legal Pty Ltd on 8 March 2018.  It was then I discovered my application had been dismissed on 2 March 2018

    6. I received an invoice from the Department of Home Affairs on 13 March 2018 pursuant to the Order made by the Registrar Trott on 2 March 2018. 

1. Whilst one could be cynical and say he did not get any other information but did get the invoice, one wonders how that happens.  His other affidavit said that after his application for protection visa was refused, he said that he was assisted in making his judicial application for review online. 

2. He did not draft any of the documents.  He said he did not receive a copy of the stamped application and the email address written at the bottom of the application was not his email address.  One wonders how on earth an email address that has the Applicant’s name plus 84, which is his year of birth, at gmail.com could have been mistakenly written in the footer.  There is no explanation other than that given to the Court.

3. That explanation or excuse is utterly unsatisfactory and the Applicant has not shown to me that he has had a reasonable excuse.  When I put all of that together, the lack of reasonable excuse, the fact that there is no merit in the application, and notwithstanding there is no prejudice to the Minister, I refuse the application for reinstatement and therefore dismiss all applications in this matter with costs in the sum of $7000.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019