Axd21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 736
•15 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AXD21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 736
File number: MLG 652 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 15 April 2021 Catchwords: MIGRATION – Safe Haven visa – decision of the Immigration Assessment Authority – whether the applicant was denied procedural fairness – whether the IAA applied the wrong test – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), pt 7AA, div 3, ss 5, 36, 46A, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473FB, 473GA, 473GB, 476 Cases cited: AUS17 v Minister for Immigration & Border Protection [2020] HCA 37
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163
DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
inister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng [2001] HCA 17
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Ponnundurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 110 Date of hearing: 9 April 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 652 of 2021 BETWEEN: AXD21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
15 APRIL 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicant is a citizen of Pakistan. He arrived in Australia in July 2013 as an unauthorised maritime arrival (Court Book (“CB”) 120).
On 1 August 2016, the first respondent (the “Minister”) “lifted the bar” under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a protection visa (CB 21-22).
On 6 March 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (the “visa”) (CB 29-70). The applicant claimed that he had fled Pakistan because he was threatened by the Taliban for selling food to the Shia community. He feared he would be considered an infidel and be liable to the death penalty. He further claimed that his brother was tortured and was only released when he paid a ransom and agreed to hand over the applicant to the Taliban when he returned to Pakistan. The applicant also claimed that the fact that he was seeking refuge in Australia (an “enemy state”) placed him at an even greater risk of harm from the Taliban as he will be labelled “a spy of westerners” (CB 67-70).
The applicant attended an interview with a delegate of the Minister on 2 November 2017 (CB 91-92).
On 15 November 2017, the applicant’s migration agent sent written submissions and further documents to the delegate for consideration (CB 108-113).
On 9 April 2018, the delegate refused to grant the applicant the visa (CB 117-138). The delegate was satisfied that the applicant faced a real chance of harm in his home area. However, the delegate found that the applicant could relocate to Islamabad, Lahore or Rawalpindi where he would not face a real chance or real risk of harm.
On 13 April 2018, the applicant’s matter was transferred to the Immigration Assessment Authority (the “IAA”) pursuant to s 473CA of the Act (CB 139-145).
On 7 May 2018, the applicant’s migration agent gave the IAA a written submission (CB 146-151).
On 14 August 2018, the IAA affirmed the delegate’s decision to refuse the applicant the visa (CB 155-171).
On 11 September 2018, the applicant applied to this Court for judicial review of the IAA’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance, the applicant must show that the IAA has fallen into jurisdictional error.
IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision-maker, the evidence relied upon and reasons of the decision-maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 17 pages long and spans 59 paragraphs. Four pages contain extracts of relevant legislative provisions. Those provisions are summarised in the body of the IAA’s decision at [31]-[32] and [55]-[56].
The IAA confirmed that it had had regard to the information referred by the Secretary (at [2]).
The IAA then noted that the submission received on 7 May 2018 was largely argument responding to the delegate’s decision and was not new information (at [3]). However, as noted, the submissions did refer to four new sources of country information: a 2015 report “Voice and Accountability Programme: Citizenship and Exclusion” published by the AAWAZ Programme (the AAWAZ report), a Human Rights Watch report, and links to two news articles from the New York Times (at [4]).
The IAA then summarised what is required by s 473DD of the Act (at [5]). The IAA noted that the applicant’s agent had not, as requested by the IAA’s Practice Direction, included an explanation about the matters in s 473DD (at [6]).
In relation to the AAWAZ Report, the IAA was not satisfied that the report could not have been provided to the delegate and noted that the report was country information and not “personal information”. As such, s 473DD(b) was not met. The IAA was also not satisfied that “exceptional circumstances” existed (at [7]-[8]).
In relation to the Human Rights Watch Report, the IAA similarly considered that the report could have been provided to the delegate and was country information (not personal information). Further, no “exceptional circumstances” existed (at [9]-[10]).
In relation to the links to articles from the New York Times, the IAA noted that those articles were dated January and February 2018. The IAA also noted that the applicant was represented at the interview before the delegate and the applicant’s agent had provided information about the particular issue identified in the articles. The IAA was not satisfied that the applicant could not have provided the information to the delegate and, again, considered the information to be in the form of country information (at [11]-[12]).
The IAA then summarised the applicant’s protection claims (at [13]).
The IAA accepted that the applicant was from Pakistan (at [14]). The IAA also accepted that the applicant was a Sunni Muslim from a village in the Upper Kurram Agency, had no formal education and is illiterate (at [15]). The IAA further accepted that the applicant operated a grocery store that sold goods to Shias, that the applicant’s brother was kidnapped by the Taliban in 2013 and that a ransom had been paid for his brother’s release (at [17]).
The IAA continued:
18. However, having carefully considered the evidence put forward by the applicant in relation to the events in 2013 that he states directly led to his departure from Pakistan, I find that there are key aspects of his evidence that are significantly inconsistent and so lacking in detail that I consider them to have been contrived for the purpose of strengthening his application.
The IAA noted that the applicant claimed that his personal profile differed from others because the applicant’s cousin would seek to make the applicant a target of the Taliban (at [19]). The IAA determined that the applicant had exaggerated “the nature and depth of enmity” between himself and his cousin. The IAA also considered the applicant’s responses to the delegate’s questions to be “very limited” and noted that the applicant had not provided any information about the nature of the feud or evidence by way of explanation of the origins and length of the feud. Nor had he provided any other examples of how his cousin or their respective families acted in relation to this enmity “in any other instance” (at [20]).
The IAA then noted that the applicant’s family had remained safely in their village since the applicant’s departure and that his cousin had occasionally asked about his whereabouts. However, his family had not revealed his location. The IAA was not persuaded that the applicant’s cousin held the degree of enmity claimed (at [21]).
The IAA was also not persuaded that any enmity that the cousin held towards the applicant remained more than five years after the applicant left Pakistan. The IAA noted that the applicant had further claimed that his cousin would report him to the Taliban “pre-emptively” to protect himself from the applicant (who would exact revenge for his losses under the Pashtunwali tribal code). However, the IAA found the applicant’s “conjecture” in this regard lacked substance or evidence and was “far-fetched” (at [22]).
The IAA found as follows:
23. On the information before me I do not accept that the applicant or his family are in an ongoing family or tribal feud that would result in the applicant’s cousin either directly harming the applicant, or reporting his whereabouts for targeting by the Taliban or any other Sunni extremist group.
The IAA accepted that the applicant and his brother operated a grocery store. In light of the applicant’s lack of literacy, the IAA found the brother’s role in the store would have been “significant” and visible to the applicant’s cousin, customers, and the wider public (at [24]). Against this background, the IAA did not accept that the Taliban would differentiate between the applicant and his brother if their primary reason for targeting the owner of the grocery store was to punish the person(s) operating a business that disobeyed their direction to cease trading with Shias. The IAA considered it implausible that the Taliban would differentiate between the applicant and his brother and rejected the applicant’s contention that his profile was unrelated to his brother (at [25]).
The IAA found that the reason for the applicant’s brother’s kidnapping was financial gain. The IAA referred to country information and noted that a ransom was paid for the brother’s release and that he has since remained in the village and has not been targeted (at [26]).
While the IAA did not preclude the possibility that the applicant’s business may have been targeted for trading with Shias, the evidence in this regard was less than persuasive. Overall, the IAA did not accept that the applicant was targeted by the Taliban as a Sunni Pashtun who opposed their ideology or would be targeted on this basis if he returned (at [27]).
The IAA continued:
28. The delegate found that the applicant had exaggerated the humanitarian motivations of his activities in selling groceries to Shia customers and that an equally plausible explanation for his actions was that the applicant was seeking to maximise his profits by selling his goods to all prospective customers regardless of their creed. I accept that the applicant has friendships and associations with Shia Muslims, however there is no information before me that this has ever extended to public activism on their behalf either in Pakistan or Australia, or that he has or will attend their Shia mosques, schools, shrines or processions. I do not accept the applicant’s claim that he has a profile with Sunni sectarian militant groups in his home region as a Shia sympathiser or advocate.
The IAA acknowledged the submission that the applicant’s characteristics and personality had changed since arriving in Australia. The IAA noted that this was not raised in the entry interview or the interview with the delegate. Rather, it was raised in post hearing submissions. The IAA stated that the submissions had no supporting evidence and did not offer any “specific examples” (at [29]). The IAA was not satisfied that the applicant had experienced changes in his characteristics and general personality that, if he returned to Pakistan, would identify him to others as having become “Westernised”. However, the IAA accepted that the fact that the applicant had lived in Australia may be known by members of his village and wider family network (at [30]).
The IAA then summarised the country information relating to sectarianism in the applicant’s home region (at [33]-[45]).
Noting that the applicant had not claimed to have previously experienced harassment or persecution from Pakistani security forces in Upper Kurram Agency, information before the IAA that Pashtuns do not face a higher risk of violence or persecution based on their ethnicity and that the prevalence of harm and targeting of Sunni Pashtuns was not high, the IAA was not satisfied that the chance of harm arising from discriminatory treatment of persons of Pashtun ethnicity in Pakistan was “real” (at [46]).
The IAA then determined that there was no evidence to suggest that asylum seekers who return to Pakistan after living in the West are “targeted” or experience societal violence or discrimination. The IAA did not accept that the applicant would be perceived as holding Western values or that he had a heightened profile or was of ongoing, adverse interest to the Taliban or any other Sunni sectarian militant groups in Upper Kurram Agency, or Pakistan more widely (at [47]).
Having regard to the country information, the IAA noted that it had placed particular weight on the Department of Foreign Affairs and Trade’s September 2017 assessment which stated that there was a low level of sectarian violence overall in the Federally Administered Tribunal Areas and a low level of generalised violence in Kurram Agency (at [48]).
The IAA continued:
49. While I accept that incidents of violence may occur in Parachinar and the Kurram Agency from time to time, I am not satisfied that the applicant shares a profile of those who may be at risk of being the target of any such attack. In particular, I note he is not Shia, is not a political or religious leader, and has never been employed by the Pakistan armed forces or a government authority. I further note that the applicant has not claimed that he or his family have previously suffered harm or persecution at the hands of Pakistani police, security forces or other authorities.
50. I am not satisfied that there is a real chance that the applicant would suffer serious harm in the Upper Kurram Agency as a Pashtun Sunni Muslim from Kochi village, as a Sunni Pashtun who has previously sold goods to Shias, or as a result of the general security situation in Kurram Agency.
The IAA found that the applicant could fly to Peshawar airport. However, roads in the area were identified as being possibly “dangerous” (at [51]). The IAA took into account the fact that the applicant would be obliged to transit through Peshawar on the way to his home region. The IAA noted that the information that roads could be dangerous was more than three years old and more recent country information did not indicate any major security incidents on the road that the applicant would use to travel from Peshawar airport to his home village. Noting that the applicant would be in transit for a “brief period”, the IAA was satisfied that the applicant could safely access his home village by flying to Peshawar airport and then travel from Peshawar to Parachinar and his village by car or bus (at [52]). The IAA was not satisfied that the applicant faced a real chance of harm when travelling to his home region (at [53]).
The IAA found that the applicant did not meet s 36(2)(a) of the Act.
Noting that the standard of a real chance was the same as a “real risk”, the IAA was not satisfied that the applicant faced a real risk of significant harm as a Sunni Pashtun from Kurram Agency, as a person who traded with Shia and associates with Shia, or as a Sunni Pashtun who will be returning as an unsuccessful asylum seeker after living in a western country for five years, or as a result of any combination of these matters (at [57]-[58]).
The IAA was not satisfied that the applicant met s 36(2)(aa) of the Act.
The IAA affirmed the decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
In his application for judicial review dated 11 September 2018, the applicant provides two grounds of review, as follows:
1. The Immigration Assessment Authority did not afford me procedural fairness.
2. The Immigration Assessment Authority applied the wrong legal test.
The applicant was given an opportunity to file an amended application, any supporting affidavit evidence and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the judicial review application dated
11 September 2018, a Court Book numbering 171 pages (marked as Exhibit 1), documents handed up by the applicant at the hearing that relate to harm to him from the Taliban (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 24 February 2021.
The matter first came before the Court on 16 March 2021. The applicant appeared before the Court without legal representation. Unfortunately, the interpreter was only able to appear via Microsoft Teams. At the hearing, the applicant indicated that he did not agree to the interpreter appearing by video and wanted the interpreter to appear in the Court “with him”. The Court indicated that it would allow the interpreter to appear via Microsoft Teams but stressed that, if any concerns arose, it would adjourn the hearing. Ultimately, the Court determined that the video connection was less than satisfactory and the hearing was adjourned.
After considerable effort on the part of the Court Registry to secure the only Pashto interpreter in Perth, the matter was able to be heard on 9 April 2021 with the applicant and the interpreter now sitting together. The Court thanks the interpreter for his considerable assistance with this matter.
At the commencement of the hearing, the Court confirmed that the applicant had a copy of the Court Book and the Minister’s written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained to him what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained to the applicant that this Court cannot review the merits of the IAA’s decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that the IAA accepted that he would face harm in his home area but then found that he could relocate. The applicant explained that he cannot relocate in Pakistan as the Taliban “will find [him]”. Further, he “will be required to work” but “does not speak the language spoken in the place [he] will need to relocate to”. The applicant also questioned why he would “come to Australia in a boat if there was no danger”. Clearly, he submitted, “there is a danger for [him]” if he returns to Pakistan.
In reply submissions, the applicant stressed that “the reason the Taliban did not target [his] brother was because the Sharia law applies to the individual. It does not apply to the family.” The applicant also explained that [his] children have not been able “to go to school because of the Taliban” and stressed that he “may be killed”. The applicant pleaded with the Court to provide him “a good outcome”.
The Court will address these submissions below.
CONSIDERATION
Ground 1
Ground 1 states:
The Immigration Assessment Authority did not afford me procedural fairness.
It has been noted by the courts on a number of occasions that a review under pt 7AA is restrictive. Indeed, it is fair to say that any procedural fairness obligations imposed on the IAA are best described as “limited”.
Here, the applicant has not identified how he was denied procedural fairness. The IAA’s procedural fairness obligations are, for present purposes, set out in division 3 of pt 7AA. It is noted that s 473GA and s 473GB have no application in this case.
There is no obligation on the IAA to invite the applicant to provide information or attend an interview: the Act, s 473DB.
Noting that the applicant was not represented before this Court, the Court has, to assist him (as per MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392) assessed whether the IAA erred in failing to exercise the powers in s 473DC(3) of the Act.
Section 473DC provides:
(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.
…
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The IAA is not required to place an applicant on notice that it is considering taking a different (and adverse) view than that taken by the delegate: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [72] (“DGZ16”). However, where the IAA is considering making an adverse assessment on a matter which the IAA was “not in the same position as the delegate to make” (for example, in relation to demeanour), the IAA is required to exercise the power under s 473DC(3) of the Act. To not do so would be unreasonable.
Having assessed the IAA’s decision in detail, the Court is not of the view that there was any denial of procedural fairness or unreasonableness within the context of s 473DC of the Act in relation to this matter.
This is not a case where the IAA did not have information about the particular issue that proved dispositive because the issue had never previously arisen in the review: Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210. The applicant’s “chance and risk of harm in his home area” was explored and the subject of findings by the delegate.
While the delegate may have come to a different view, this is not a case where, without exercising the power under s 473DC(3), the IAA did not have the necessary information to complete the review: DGZ16 at [70]. Here, the IAA had all of the information before it that was necessary to determine whether the applicant faced a real chance or real risk of harm in his village for the reasons claimed. The applicant’s entire visa application was premised on him facing a real chance or real risk of harm.
The Court notes that the applicant’s written submissions to the IAA state (CB 147):
Although the Delegate overlooked crucial aspects of our client’s protection claims they accepted that they would face harm in their home region, therefore this submission will focus on the contention of our client’s ability to relocate to other regions in Pakistan.
The submissions conclude (CB 151):
Given we are limited in our response to 5 pages, we have not addressed all aspects of the Delegates reasoning and invite the IAA to put additional concerns to our office prior to determination
In context, it was not for the IAA to make further inquiries here or exercise the power under s 473DC(3) of the Act to identify whether anything was “overlooked”.
Here, the IAA had all relevant materials before it and was able to determine what claims arose from the materials themselves. The IAA was not bound by the delegate’s assessment or the identification of claims. It conducted a de novo review. In that regard there is no evidence that any claims were overlooked by the IAA. Indeed, the IAA’s assessment in this regard is thorough.
It was entirely open to the IAA to proceed without making further inquiries under s 473DC in response to the applicant’s written submissions.
No error arises in relation to s 473DC.
In relation to the “new information” provided in the submission, the IAA carefully considered that information against s 473DD of the Act. It noted that the applicant’s agent had not provided an explanation about why the information met the requirements of s 473DD (as required by the Practice Direction). The applicant was on notice (via the Practice Direction) of what was required to meet the scope of s 473DD of the Act. Unfortunately, his migration agent took no steps to address this issue.
The IAA correctly approached its assessment of s 473DD of the Act. Notably, the IAA assessed s 473DD(b) prior to s 473DD(a): AUS17 v Minister for Immigration & Border Protection [2020] HCA 37. The information did not meet the requirements in s 473DD. The IAA was not required to put the applicant on notice that s 473DD had not been met.
The Court also notes that the new information did not comply with [26] of the IAA’s Practice Direction. The agent provided “hyperlinks” to the new information. It was open to the IAA not to accept the new information on this basis alone: the Act, s 473FB(5). However, the IAA did, in any event, choose to consider the new information against s 473DD.
The applicant was not denied procedural fairness in relation to the IAA’s treatment of the new information and had the opportunity to comment and participate in the review.
There is nothing in the IAA’s decision or in the materials in the Court Book which (in the Court’s view) required the IAA to exercise its powers under s 473DE of the Act.
Finally, the Court notes that the IAA is not immune from bias claims. In this regard, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng [2001] HCA 17 at [71]-[72]; or
(b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to suggest that the IAA was biased. The IAA accepted a number of the applicant’s claims (see, [14]-[17]) and engaged extensively with the evidence and information before it.
The Court also confirms that there is nothing in the materials before the Court that could be considered to be “irrelevant and prejudicial” so as to indicate bias as per the High Court’s decision in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50.
The applicant was not denied procedural fairness.
Ground 1 is dismissed.
Ground 2
Ground 2 states:
The Immigration Assessment Authority applied the wrong legal test.
The Court notes that the IAA’s summary of the legal principles relevant to the refugee criterion (at [31]-[32]) and the complementary protection criterion (at [55]-[56]) are accurate.
Nonetheless, the Court remains alert to any possibility that the law was not applied correctly.
By this ground, the applicant refers to the “test”. Arguably, although not entirely clear, the applicant is claiming that the IAA erred in its application of the “real chance” test.
The Court is satisfied that the IAA’s application of the real chance test is entirely sound. The IAA uses positive language in its assessment. It expressly notes that it is not satisfied that the chance of harm is a “real one” (at [46]) or that there was a “real chance” of harm for particular reasons.
The IAA referred to the applicant’s lack of any claim to have been subjected to harm previously for certain reasons (at [46]) and his family’s lack of harm since his departure (at [49]). Previous harm is a valid consideration in determining “the chance of harm” for an applicant on return: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22. Further, the IAA (at [46]) expressly states that the fact that one group does not face a higher risk or chance of harm than others does not preclude there being a real chance of harm to that group. This statement is a direct reference to the decision in Ponnundurai v Minister for Immigration & Multicultural Affairs [2000] FCA 91 which used the analogy that:
…in World War II, the crew of a bomber were not all “equally at risk”. The rear gunner was notoriously “at particular risk”. But it did not follow that other members of the crew were not at risk, and did not have a real chance of being killed.
Any analysis in this regard should focus on the chance or risk of harm to the particular group. It is that chance or risk. That chance or risk may still be a “real” one notwithstanding that another group has a higher chance or risk. The IAA appreciated this distinction. It further analysed the level of risk and chance of harm and, on the basis of country information regarding the prevalence of harm to Sunni Pashtuns, was not satisfied that the chance of harm was a real one.
The IAA’s consideration and application of the real chance test is sound.
As the real chance test imposes the same standard as the real risk test, it follows that in circumstances where there has been no error in the real chance test then the real risk test is similarly without error.
The Court is satisfied that the IAA properly applied the relevant legal principles when assessing each of the applicant’s claims.
Ground 2 is dismissed.
Oral Submissions
Here, the dispositive issue in the delegate’s decision was whether the applicant could safely relocate. The delegate found that the applicant would face a real chance of harm in his home district.
In contrast, the IAA found that the applicant did not need to relocate because, the IAA determined, the applicant did not face a real chance of harm for the reasons he claimed in his home village. As such, the issue of relocation did not arise.
The applicant’s oral submissions were directed towards the issue of relocation. Those concerns relate to the delegate’s decision and findings. This Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4). Accordingly, in so far as the applicant’s oral submissions refer to relocation (and why he cannot relocate), they do not evidence jurisdictional error on the part of the IAA.
The applicant also advised the Court that “all of the errors” the Court had referred to when explaining jurisdictional error “occurred here”. Unfortunately, no particulars were provided.
The Court has addressed whether the IAA identified the wrong issue or asked the wrong question in the context of ground 2 above. The Court has also considered whether the IAA failed to follow mandatory procedures (i.e., procedural fairness obligations) or displayed any form of bias in the context of ground 1.
Having reviewed the materials in the Court Book, the Court is satisfied that:
(a)the IAA took into account all of the relevant materials and did not rely on any irrelevant materials. The IAA referred to the information and the evidence that the applicant had provided throughout the course of his application, it considered the submissions that were advanced on behalf of the applicant to both the delegate and the IAA and it had regard to country information which was critical to the assessment of the applicant’s claims;
(b)the IAA’s summary of the applicant’s claims is entirely sound. There is nothing to suggest that the IAA overlooked any claim (or any integer of a claim). The IAA’s analysis of each claim is detailed and comprehensive. It refers to the applicant’s personal circumstances and evidence and country information;
(c)the IAA’s findings are rational and logical. The conclusions reached had a probative foundation tied to the applicant’s own evidence and the country information which was applicable to his particular circumstances; and
(d)for the reasons given in relation to ground 1, the IAA acted entirely reasonably in the exercise (and non-exercise) of its powers.
The applicant’s oral submissions otherwise were directed to the merits of the IAA’s decision and his claims not to return to Pakistan. Unfortunately, the Court cannot assist the applicant or give any weight to these submissions as they do not identify any jurisdictional error. Instead, they invite impermissible merits review.
The Court notes that the applicant sought to hand up a copy of his tax statements at the conclusion of the hearing to show he is an honest “hard worker”. The Court has no difficulty accepting that this is the case. However, the Court declined to consider these documents as they were not relevant to the issue of jurisdictional error on the part of the IAA.
The applicant’s oral submissions fail to identify any jurisdictional error.
Exhibit 2
During the hearing, the applicant handed up a bundle of documents. The first document appeared to be a business card for the applicant’s grocery store. The second document was a letter (and accompanying translation) purportedly sent to the applicant from the Taliban which provides:
…
Islamic Movement of Taliban Pakistan
Number: 206 Date: [omitted]
Dear [applicant], after Salam We the Taliban movement sent you a letter on the 05/02/2013 that said that you were dealing with the Shia sect in food products. And you were accused of this crime. But you did not appear. Then due to your crime on the 27/2/2013 we picked (kidnapped) your brother [omitted] and put him before the judge. After standing before the judge, the judge ordered that the crime was committed by [applicant] and not [applicant’s brother]. Therefore we released him on [omitted].
Therefore we are informing you again that by receiving this letter to present yourself. If you do not present yourself, the Taliban Movement will certainly give you the death penalty. Then you will have no excuse.
This document is not found in any of the materials in the Court Book. The applicant told the Court that he “gave this document to [his] migration agent but it appears that it was not provided to the delegate or the IAA”.
As the document was not before the IAA, it cannot be relied upon to demonstrate jurisdictional error in the IAA’s decision. However, it is at least arguable that this was information that should have been provided to the IAA. The information was, in the Court’s view, relevant to the applicant’s claims. It arguably raises issues of concern in relation to the risk of harm should the applicant return to Pakistan.
The Court refers the applicant to the Office of the Migration Agents Registration Authority should he wish to make a complaint about what he says is his migration agent’s failure to provide this or any other document to the delegate or to the IAA.
As the applicant’s review falls under pt 7AA of the Act, there is no statutory power for the Minister to substitute a more favourable decision for the applicant. For example, there is no equivalent to ss 351 or 417 of the Act. It is arguable, however, that the Minister is able to “lift the bar” for the applicant. The Minister may well determine that he should do so in this matter in light of Exhibit 2. The Court expresses no view as to the genuineness of this document. Whether the Minister wishes to “lift the bar” is a matter entirely for the Minister.
CONCLUSION
The application for judicial review has failed to identify any jurisdictional error. The applicant’s oral submissions and Exhibit 2 also fail to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error in the IAA’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 15 April 2021
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Natural Justice
-
Statutory Construction
-
Remedies
0
18
0