ATD18 v Minister for Home Affairs
[2019] FCCA 1158
•9 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATD18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1158 |
| Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority– whether “exceptional circumstances” to justify consideration of new information – country information – relevance of new information. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 |
| Applicant: | ATD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 67 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 9 April 2019 |
| Date of Last Submission: | 9 April 2019 |
| Delivered at: | Darwin |
| Delivered on: | 9 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rutherford |
| Solicitors for the Applicant: | Camatta Lempens Lawyers Pty Ltd |
| Counsel for the First Respondent: | Ms Stokes |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 19 February 2018 be dismissed.
The applicant pay the first respondent’s costs in the sum of $7,328.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 67 of 2018
| ATD18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex-Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 19 January 2018 affirming a decision of the Minister’s delegate made on 13 April 2017 to refuse the applicant a protection visa. The applicant is a Shia Hazara citizen of Pakistan from Quetta in Balochistan Province. The applicant’s refugee claims related to his membership of the Shia sect of Islam and his Hazara ethnicity. It was said that in Quetta he was at risk of harm from attacks by terrorists from the Sunni sect of Islam.
The delegate accepted that there was a real risk of harm to the applicant in Quetta from terrorist attacks against Shia Hazaras but that risk was only remote should the applicant relocate to Islamabad and, further, that it was reasonable that he should do so. On application to the Authority under the fast-track review process under part 7AA of the Migration Act, the Authority accepted some new information under section 473DD of the Act but refused to consider other new information because it was not satisfied there were exceptional circumstances to justify considering it.
The new information that it did consider, because it was satisfied that there were exceptional circumstances, was information from the South Asia Terrorist Portal (“SATP”) relating to Shia deaths and the circumstances of those deaths in Pakistan from 2009 to 21 May 2017. The SATP report is not included in the court book so I can only infer what its contents may have been. The Authority said at paragraph 4 of its decision that it was recent information about the deaths of Shia Muslims resulting from sectarian violence in Pakistan.
The information in the SATP report was referred to throughout the decision, particularly in regard to the assessment of the risk of harm to the applicant should he relocate to Islamabad. The Authority considered detailed information about sectarian attacks on Shias and Hazaras in Islamabad and concluded, contrary to the applicant’s submissions that there was nowhere safe for him in Pakistan, that the applicant was not at real risk of harm in Islamabad should he relocate.
The applicant sought to rely on various items of new information. These were items of new information post-dating the delegate’s decision. They included a 26 April 2017 report about the lynching death of a journalism student accused of blasphemy by a mob in north-western Pakistan. It appears the circumstances of that lynching were related to him speaking out about injustice and corruption. As well there was a report of 14 April 2017 concerning a Pakistani Government investigation into a number of NGOs being investigated for promoting blasphemy and pornography on social media.
The next was a report of 5 May 2017 concerning the death of a child in a melee outside a police station in Balochistan where a Hindu man had been detained and accused of blasphemy. There was another report of the same date about a mentally ill man in Chitral Province who proclaimed himself as a “prophet”.
This was followed by a report dated 26 April 2017 by the US Commission on International Religious Freedom which noted that religious minorities in Pakistan were disproportionately subject to blasphemy allegations. That report also noted that a Shia man had been imprisoned for five years some time before the making of the report. The Authority pointed out that the report did not indicate that Shias were particularly targeted for “blasphemy attacks” although they are a religious minority in Pakistan.
That report also referred to “targeted sectarian violence”. The Authority pointed out at the end of paragraph 12 of its decision that the incidents referred to in that report had been reported in other information that was before the Authority. The Authority concluded in paragraph 13 of its decision that it was apparent from these reports on so-called “blasphemy attacks” in Pakistan, that is, attacks on people accused of blasphemy, that there are a range of motivations for those attacks.
The Authority pointed out that the reports which the applicant sought to rely on did not refer to attacks on Shia Muslims. The Authority also pointed out at paragraph 13 that the applicant does not share a similar “profile” with any of the victims of those attacks.
The Authority, having reviewed the material, observed at paragraph 14 that the material did not indicate any material change in the circumstances in Pakistan - referring to any change since the delegate’s decision and since the consideration of the material that was before the delegate - and that the material was of limited relevance.
The Authority also referred to a CNBC news item from March 2017. Some questions were raised about why it could not have been provided prior to the delegate’s decision in April 2017 but, in any event, the Authority went on to consider the material. This was video footage, apparently included in a Twitter feed, concerning the involvement of an organisation called “ASWJ”, which I take to be a Sunni extremist organisation in Pakistan, in school curriculum development. The Authority noted that it did not consider that material to be relevant to the applicant’s claims.
The applicant’s claims for protection were as follows and I summarise: that he was a Shia Hazara from Quetta, Balochistan; there had been many attacks on Hazaras in Quetta, including attacks by an organisation called Lashkar-e-Jhangvi; there had been an explosion outside the applicant’s shop in Quetta on February 2013; he feared that Sunni groups may harm him due to his Hazara Shia identity; that there was nowhere safe in Pakistan for him, including Islamabad; that the government does not protect Hazaras; that he feared harm as a “returnee” from Australia; that he would be perceived as an Afghan or a Pashtun in Pakistan and subject to persecution on that basis; and that the risk of harm to him would increase as other Shias and Hazara people move to Islamabad to safety.
The substance of the submissions of the applicant were that the material that the Authority refused to consider, which I have described, was relevant to a submission the applicant made that there was a “rising tide” of sectarian violence against Shias and others in Pakistan and that rising tide of violence was confirmed by the information about lynchings related to blasphemy included in the material.
The US Commission on International Religious Freedom report also referred, in addition to blasphemy allegations being disproportionately targeted against minorities, to incidents of “targeted sectarian violence”. The Authority discussed each of the items of new information and it is clear, as I have mentioned, that that information related to disparate circumstances and, as the Authority pointed out at paragraph 13, the information indicated
… a range of motivations for blasphemy attacks on individuals accused of blasphemy. None of those reported to have been attacked appear to have been Shia Muslims, and the applicant does not appear to otherwise share the profile of any of the individuals attacked.
Although the US Commission on International Religious Freedom report refers to a Shia man being imprisoned, the material did not indicate, as I have mentioned, that Shia had been particularly targeted. Having regard to those matters, the Authority said it was not satisfied there were exceptional circumstances to justify consideration of any of the material under section 473DD of the Migration Act.
The applicant prosecuted one ground of appeal in his amended application that the Authority misapplied section 473DD of the Migration Act. I will summarise the particulars set out by the applicant in his amended application. They were at 1.1, that the applicant provided information to the Authority, the “post-dated information”; at 1.2, that the Authority found exceptional circumstances in relation to the SATP information to justify its consideration; at 1.3, that the Authority failed to apply the same test of exceptional circumstances to the post-dated information; at 1.4, that the Authority did not identify any of the circumstances it took into account in determining there were no exceptional circumstances to justify consideration of the post-dated information; and at 1.5, the Authority fell into error by placing weight on the relevance of the post-dated information.
In submissions, the applicant said all the post-dated information, like the SATP report, contained more recent information about Pakistan and when the fluidity of the security situation was considered an exceptional circumstance so as to justify the consideration of the SATP material, so the post-dated information should also have been considered under the exceptional circumstance exception in the section.
Counsel for the applicant was not able to refer to any authority supporting the submission that inconsistency in the treatment of country information constituted jurisdictional error under section 473DD of the Act. Perhaps anticipating the objection that any apparent inconsistency of treatment may simply reflect the relevance of and weight given to the information the particulars of the appeal, particularly at 1.5, counsel asserted the Authority was in error to place weight on the relevance of post-dated information. No authority for that proposition was provided.
The Minister submitted that relevance and weight of new information must be matters to be considered in deciding whether there are exceptional circumstances to justify consideration of new information. I accept that submission.
The Authority considered each item of new information. None of those items were directly relevant to the applicant as a Shia Hazara, and the applicant did not share a “profile” of any of the victims of the blasphemy attacks. Counsel for the applicant said that the relevance of the material was that it demonstrated a “rising tide” of persecution. Counsel for the applicant accepted that the material nowhere expressly referred to an increase in persecution in recent times and certainly not since the delegate’s decision.
The Authority observed in relation to the material, correctly it would seem, that there was similar material before the delegate and the material does not indicate a change in the situation in Pakistan. In this sense, the material was different to the SATP material that, at least in relation to the security situation in Islamabad, showed that Islamabad had very few sectarian attacks in recent years and it was noted that no Shia had been killed in sectarian violence in Islamabad from 2015 to 21 May 2017, and that apart from one targeted killing of a Shia political leader in 2014, there had been no killings of Shia in Islamabad since 2009.
I do not accept the assertion in particular 1.4 of the appeal ground that the Authority failed to identify “any” of the circumstances taken into account in deciding that there were no exceptional circumstances to justify consideration of the new material. At paragraph 13 of the decision the Authority considered the new material about blasphemy attacks and it noted as follows: that there are a range of motivations for the so-called blasphemy attacks; that the applicant did not share a “profile” with any of the victims of the described blasphemy attacks; that the material was similar to that provided to the delegate; that the new information not indicate a material change in the situation in Pakistan; and that the new information was of limited relevance to the question of whether the applicant had a well-founded fear of persecution on the grounds advanced by him.
There was, in my view, no unduly narrow consideration of the nature of exceptional circumstances of the kind described by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.
I do not accept that there was inconsistency in the approach of the Authority between the SATP report and the new information advanced by the applicant but, rather, the material, or the information, is different to the SATP information, which directly related to the situation of Shia Muslims and the risk of harm to them in Pakistan, and Islamabad in particular. I do not accept that it failed to identify the circumstances it took into account in deciding that there were no exceptional circumstances to justify consideration or that it fell into error by placing weight on the relevance of the new information but that, on the contrary, it was appropriate to place weight on the relevance of that new information.
The Minister submitted that there were two reasons why there was no jurisdictional error in this case.
The first was that an examination of the Authority’s decision revealed that it had discharged its statutory responsibility under the Act by, first, considering the new information, secondly, considering whether the new information satisfied one or other of the paragraphs (a) and (b) in section 473DD. I wondered if that was possibly meant to refer to the Authority having considered one or other of the parts (i) and (ii) in paragraph (b) but, in any event, I am satisfied that the Authority did that and did so in relation to deciding whether (i) or (ii) of paragraph (b) of 473DD applied and considered separately the question of whether the provisions of paragraph (a) applied. A third point raised by the Minister was that the Authority did not adopt an unduly narrow conception of exceptional circumstances. I accept that that is the case. Fourthly, the Minister submitted that the Authority considered the new information as it pertained to the applicant’s circumstances. The Minister submitted that in carrying out those identified four steps it satisfied its statutory function under section 473DD and there was therefore no jurisdictional error. I accept that submission.
The second reason advanced by the Minister was, in summary, that the relevance and the weight of the new information was properly taken into account when the Authority decided whether or not it was satisfied that there were exceptional circumstances and pointed to the well-known decision of NAHI v Minister [2004] FCAFC 10 in support of the submission that it is for the Authority to consider the weight to be given to country information.
I am not sure that NAHI is precisely on point here because it concerned a somewhat different situation but I do accept, for the reasons that I have already referred to, that it was appropriate for the Authority to have regard to the weight and relevance of the new information in deciding whether it was satisfied there were exceptional circumstances to justify considering that new information. For these reasons, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 2 May 2019
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