BBO16 v Minister for Immigration

[2016] FCCA 2541

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBO16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2541

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa (Subclass XE790) – whether the delegate properly applied a reasonableness test – whether the applicant was misled by the delegate – whether the Authority properly applied the internal relocation test – whether the applicant was denied natural justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DA.

Applicant: BBO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1133 of 2016

Judgment of: Judge Street

Hearing date: 30 September 2016

Date of Last Submission: 30 September 2016

Delivered at: Sydney

Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant: Mr J Hyde

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1133 of 2016

BBO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 1 April 2016 affirming the decision of the Authority not to grant the applicant a Safe Haven Enterprise Visa (Subclass XE790). The applicant was found to be a citizen of Pakistan and arrived on Christmas Island on 11 November 2012. The applicant applied for a protection visa on 14 August 2015 and was interviewed by the delegate on 16 November 2015.

The Delegate’s Decision

1. In the course of the interview with the delegate the issue of whether the applicant could relocate in Pakistan was raised, relevantly, as follows:

   Kylie: And why do you think you were able to safely leave Pakistan?

   Interpreter: I'm not clear. Are you saying that I should face some incident and then I am supposed to leave Pakistan?

   Kylie: No what I'm saying is you've explained to me that other people were killed approximately 2 to 3 weeks after they received similar threats to you. How come you were able to still stay in Pakistan for another 3 to 5 months without incident?

   Interpreter: So it depend to them when or where and how they targeting the people. So according to me, once I had received the threats I totally stopped to go to my shop. Even I didn't go for - to buy or didn't return from that grocery shop and I spent whole times in my house and to go to the Imanbarogo? Mosque. I did not show myself to that area during that period.

   Kylie: OK. And is there anywhere that you could safely live in Pakistan?

   Interpreter: No, Shia people don't have any security in all of Pakistan.

   Kylie: Is there any other reason why you think you couldn't safely live anywhere else in Pakistan?

   Interpreter: First of all I was born there in my area. I grew up in that area. I'm familiar with that area but to me to move from my own area to the other part of that country, so it will be very hard for me to settle myself first of all to the new area and secondly they will identify me as a new arrived people and they will recognise me and I will not be safe in the new area.

   Kylie: Why wouldn't you be safe in another area?

   Interpreter: As I said Shia is not safe in any area.

   Kylie: So did you ever consider moving to a different part of Pakistan before leaving the country such as Islamabad where there is also a Shia population?

   Interpreter: How should we go there? As you probably aware that they are stopping the bus when the people travel into Iran and kill them all because of their religion so now how can I take my family and my belongings to the bus and go to other city?

   Kylie: And is there any other reason besides your religion why someone would target you?

   Interpreter: I was targeted because the reason that I belong to the Shia religion so what other reason are you looking for?

   Kylie: Well I'm not looking for a particular reason, I'm just giving you the opportunity to let me know if there are any other reasons.

   Interpreter: No I don't have any other issue and my life is obviously at risk because of my religion.

   Kylie: And why couldn't the authorities protect you in any other part of Pakistan?

   Interpreter: As I mentioned before they have influence through the police into the government Authority. They have a really strong connection by them or wherever I go to start new life they will recognise me and they will recognise me that I belong to this religion and I will be targeted by them.

   Kylie: So who would recognise you?

   Interpreter: Lashkar-e.

   Kylie: So if they weren't able to find you in your own home, why would they be able to find you in another city?

   Interpreter: So they are very active organisation and they are active in every city. While they know that I am living in that area for sure, they will find me but when I was inside of my home or when I'm outside of my home here, clearly they know that I'm not in that area.

   Kylie: How would they know that?

   Interpreter: They are very strong organisation and they a lot of people who working with them in this part for them, this intelligence information they are very active.

   Kylie: So there are some country information reports that support the ability of Shias to relocate within Pakistan to areas such as large cities where there is a mixture of ethnicities and low levels of religious violence. Do you have any comment about those particular reports?

   Interpreter: So the danger or the risk is this, my life is in risk and danger whether I live in a small city or a big city. Because of this life risk I was afraid and flee from the country.

   Kylie: And do you have any further comments about why you couldn't live in any other part of Pakistan?

   Interpreter: So every part of Pakistan there is risk, there is life risk for the Shia people. The bomb blasting among ceremony or demonstration on the mosque or?? that the Shia people going for praying and this sort of risk is everywhere in every corner of Pakistan. And just in the last ? ceremony there was a bomb blasting in the small town called ? inside of the mosque, Shia mosque.

   Kylie: OK so earlier you explained in your statement how several other shopkeepers have been killed after being threatened. So why didn't you take the threats against you seriously in the beginning given what had happened to other shopkeepers?

   Interpreter: As I mentioned first of all I'm not in a position to talk about other people's position but I'm not clear they were killed after first threat or second threat or whatever but according to me once I had received the first threatening letter I ignored it. I thought maybe that's just mocking me or joking somebody with me but once I had received the telephone threat and the second letter and I talk with my wife and my wife told me that people were killed or people are killing them after this sort of threat so your life is very useful for us. It's not joking, you need to think about your life and save your life.

   Kylie: So why would you risk your life by waiting in Pakistan another 3 to 4 months for your business to be sold when you already had a passport issued to you and the means to be able to depart the country?

   Interpreter: So I need to find a person who can make arrangement for me to leave the country, it takes time.

   Kylie: OK and is there anything further that you would like to add in relation to your protection claims?

   Interpreter: Nothing else. I believe I have said everything that I am supposed to say. Beside that my mind is not in proper position.

   Kylie: And do you have anything more to tell me?

   Interpreter: No the only things I can tell you is that I'm always thinking about my children and about my wife and I'm really concerned about my family's situation back there.

   Kylie: And how is your family being supported?

   Interpreter: When I sold the shop I leave some money for them for their expenses.

   Kylie: And are your children still going to school?

   SH: Yes.

   Interpreter: Yes.

   Kylie: And have you put forward all your claims for protection today?

   Interpreter: Yes.

   Kylie: And did you have any questions for me?

   Interpreter: Not particular question.

   Kylie: So I haven't requested any further information from you today, however if any further information is provided to the department it may be taken into account prior a decision being made.

   SH: Ces.

   Kylie: So if the department needs any further information from you, they will be in contact with you.

   SH: Ces.

   Kylie: So please keep your contact details up to date so we'll be able to contact you at the right address.

   Interpreter: OK I will.

   Kylie: OK so I'll now conclude your interview. The time is 12.05 pm.

   SH: Ces.

   (Errors in original.)

1. The applicant claimed to fear harm in Pakistan for reason of his race and religion. The applicant claimed to be of a particular ethnicity and Shia religion and to fear harm in his home area from members of the Lashkar-e-Jhangvi and other fundamentalist Sunni groups.

2. The delegate’s decision made on 4 March 2016 identified the applicant’s claims and evidence and referred to country information with regards to the location of Shias through Pakistan, which relevantly included a reference from a 2015 DFAT report that referred to both Lahore and Islamabad as well as other areas. The delegate also referred to a DFAT thematic report dated 15 January 2016 in the course of its assessment of the country information in relation to the applicant’s claims.

3. The delegate found it was reasonable for the applicant to relocate to another city such as Lahore, where he would be supported by the Shia community. The delegate found it would be reasonable for the applicant to relocate as outlined in s.36(2B)(a) of the Act. The delegate found there is not a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. The delegate made an assessment that the applicant was not an excluded fast-track review applicant.

The Authority’s Decision

1. On 7 March 2016 the Authority acknowledged referral of the decision for review under Part 7AA of the Act. That provision relevantly includes s.473DA, which is as follows:

   Exhaustive statement of natural justice hearing rule

   (1) This Division, together with sections 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 Immigration Assessment Authority.

   (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

2. The Authority received submissions from the migration representative on behalf of the applicant that relevantly took issue with whether it was reasonable for the applicant to relocate, referring both to Lahore and Islamabad as well as Rawalpindi. The Authority’s reasons refer to taking into account those submissions. The Authority relevantly found that it was reasonable for the applicant to relocate to Islamabad. The Authority referred to the fact that the applicant is not a leading figure of the kind attacked by Sunni militants and found that the possibility that he would be targeted in such a manner in Islamabad is remote.

3. The Authority made reference to there being no indication in the DFAT report that the Islamic state is a threat to the Shia population, at least in Islamabad. The Authority was not satisfied there is a real chance the applicant would be harmed in an attack of that kind. The Authority found that there was no evidence that the applicant would not be able to freely practise his Shia religion in Islamabad.

4. The Authority found the applicant would be able to access Islamabad safely and directly if he returned to Pakistan. The Authority was not satisfied there is a real chance the applicant would be harmed in Islamabad for reason of being a Shia Muslim and/or a Yusufzai. The Authority was not satisfied there is a real chance the applicant would be harmed in Islamabad for reasons of being a Shia Muslim and/or a Yusufzai or for any other reason specified in s.5J of the Act now, or in the reasonably foreseeable future. The Authority was not satisfied that there is real chance of the applicant facing persecution in all areas of Pakistan. The Authority found the applicant did not meet the definition of “refugee” in s.5H(1) of the Act and found that the applicant did not meet the criteria under s.36 (2)(a) of the Act.

5. The Authority found that it was satisfied that the applicant could establish himself in Islamabad without support from Shia organisations and found that whilst the applicant had no family in Islamabad he has extensive experience in owning and operating a cement business. The Authority found the applicant could obtain paid employment in Islamabad on the basis of experience and skills that he has obtained from running his former business. The Authority noted that the applicant had formerly resided in a Shia Hazara enclave in a particular location and that there were suburbs of this kind in Islamabad.

6. The Authority noted that the applicant speaks Pakistan’s national language of Urdu as well as the related languages of Farsi, Dari and Hazaragi. The Authority made reference to the fact that during the interview the applicant demonstrated an ability to understand and conduct himself in English and also that his mother tongue was Pashto.

7. The Authority found it was reasonable for the applicant to make arrangements that would permit his wife and two children in their particular location to travel to join him in Islamabad. The Authority was satisfied that it would be reasonable for the applicant to relocate to Islamabad and found that there was an area where there would not be a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings Before this Court

1. The relevant grounds of the amended application that are pressed are as follows:

   3A. The Applicant was denied procedural fairness in consequence of which the Decision was affected by jurisdictional error in that the Delegate failed to properly apply the reasonableness test in section 36 (28) (a) of the Migration Act.

   Particulars

   (a) The Delegate failed to consider whether it would be reasonable for the Applicant to be returned to Islamabad:

   (b) The Delegate positively asserted that the Applicant could be relocated to Lahore.

   Particulars

   (i) see paragraph 99 of the DIBP Decision at page 122 of the Court Book.

   (c) The Delegate positively asserted that Lahore could be safely accessed through an international airport.

   (d) The Delegate actively considered that the Applicant would be relocated specifically to Lahore.

   Particulars

   (i) see paragraph 103 of the DIBP Decision at page 123 of the Court Book.

   (e) The Delegate positively asserted that the Applicant could be safely and legally returned to Lahore.

   Particulars

   (i) see paragraph 108 of the DIBP Decision at page 124 of the Court Book.

   (f) The Delegate said that it was reasonable for the Applicant to be returned to Lahore.

3B. In consequence of the matters referred to in paragraphs 3A(a) to (f) herein, the Applicant was misled as to the proposed place of relocation and was denied an opportunity to properly address the reasonableness of the proposed place of relocation.

Particulars

(i) see pages 147 to 151 of the Court Book.

3C. Had the Applicant been properly informed that the Minister considered it appropriate to return the Applicant to Islamabad as opposed to Lahore. The Applicant would have specifically addressed the following fact, issues and matters including:

(a) whether it would be safe for him to return to Islamabad;

(b) provided country information to demonstrate that it was not safe for him to return to Islamabad;

(c) the practicability of him relocating to Islamabad;

(d) whether there was any avenue of support readily available to him in Islamabad;

(e) the difficulty of relocating his family to Islamabad in circumstances where travel by road was an impossibility and conceded to be so by the Delegate:

(f) the prohibitive cost of relocating his family to Islamabad by air in circumstances where he had limited (if any) financial capacity to effect such a relocation. which would necessarily have been by air;

(g) the realistic prospects of his employment in Islamabad given his particular personal circumstances including his limited education and lack of any contacts;

(h) whether in all circumstances peculiar to the Applicant it was reasonable for the Applicant to relocate to Islamabad.

5. Further or in the alternative, the Respondent failed to apply the internal relocation test property by failing to consider the “reasonableness” of requiring the Applicant to relocate to Islamabad and whether by relocating him in that manner the Applicant would suffer significant psychological harm by not being able to reunite with his family.

Particulars

(a) The Respondent failed to properly consider the difficulties or impediments the Applicant would have in relocating himself to Islamabad and how the Applicant would deal with those practical realities.

(b) The Respondent failed to properly consider whether travel by air for the Applicant's family was reasonably available in circumstances where he is impecunious by reason of the forced sale of his business.

6. Further or in the alternative to paragraph 5, in making the Decision the Respondent improperly exercised the power conferred by the Act in pursuance of which it was purported to be made because the Respondent failed to take into account, or in the alternative, the Respondent failed to give adequate weight to the following objections (which are relevant and significant factors) raised by the Applicant including that:

(a) The Applicant resided in Quetta all of his life and had no family or other means for financial or other support outside of Quetta nor any financial stability at present.

(i) The Respondent was satisfied that the Applicant had resided in Quetta all his life and had no family or financial support outside of Quetta.

(ii) The Respondent did not challenge the Applicant's submission that he has used up most of his savings to support his family and to finance his travel to Australia and is of little to no financial means.

(iii) The Respondent accepted that other possible sources of support raised and relied on in the DIBG Decision may not be available to the Applicant.

(iv) The Respondent accepted that the Applicant would need to make arrangements that would permit his wife and two children to join him in Lahore so that the Respondent implied that the Applicant would not have the support of his immediate family in Islamabad Lahore and may not have that support for the foreseeable future.

(v) In the circumstances, the Respondent failed to properly consider the integers that a lack of emotional and financial support may have on the Applicant's practical ability to relocate in Islamabad regardless of the Applicant's work experience and skills.

(b) Relocation of the Applicant's Family.

(i) The Applicant considered that his family could not make the journey between Quetta and Lahore safely as the roads were insecure.

(ii) The Respondent states that it would be reasonable for the Applicant to make arrangements that would permit his wife and two children in Quetta to travel and join him in Lahore.

(iii) The Respondent does not challenge that the safest way to travel is by airplane.

(iv) The Respondent does not address the prohibitive costs of travel by airplane in circumstances where the Applicant is impecunious.

(v) The Respondent failed to consider how and whether the Applicant could make arrangements that would permit his wife and two children in Quetta to travel safely to Lahore.

10. Further or in the alternative, the making of the Decision involved a breach of the rules of natural justice and a denial of procedural fairness in circumstances where:

(a) The Department of Foreign Affairs and Trade Thematic Report - Shias in Pakistan 2016 (DFAT Report) contained information in support of the Applicant's position that the Respondent failed to disclose to the Applicant.

(b) The DFAT 2016 Report formed a significant basis of the Decision.

(c) The DFAT 2016 Report was not made available at the time of the Applicant's first interview with the Department of Immigration and Border Protection (DIBP) in November 2015 and was never made available subsequently to the Applicant despite a request for same (see paragraph 10 of the DIBP Decision) so that the Applicant did not have an opportunity to respond to that document.

(d) By relying upon the DFAT 2016 Report, the Respondent did not act fairly in the circumstances as the Applicant was denied the opportunity to put information and submissions as to whether or not it would be reasonable for the Applicant to relocate to an area of Pakistan where there would not be a real risk that the Applicant would suffer significant harm. This extends to the right to rebut or qualify by further information, and comment by way of submission upon adverse material.

(e) The Applicant had a legitimate expectation that all information that formed the basis of the Respondent's decision that it would be reasonable for the Applicant to relocate to Islamabad would be put to him. The exercise of the power by the Respondent was capable of affecting the interests of the Applicant, seized of that legitimate expectation.

(f) The DIBP Decision discusses relocating the Applicant to Lahore and not Islamabad so that it was not apparent to the Applicant that he needed to address a potential ruling of relocation to Islamabad.

(g) The Applicant was not provided any proper opportunity to make submissions or raise specific objections in respect of relocation to Islamabad before the Decision was made.

11. That the making of the Decision involved a breach of the rules of natural justice in that the Respondent gave consideration to information in respect of Islamabad, when the Applicant was not given:

(a) Any proper notice of the likely change in the relocation destination from Lahore to Islamabad; or

(b) A proper opportunity to put forward any objections specific to relocation to Islamabad such as safe transit for his family from Quetta to Islamabad in respect of relocation;

before the Decision was made.

1. The applicant’s application for review was one day late. An order was made on 21 June 2016 extending time under s.477(2) of the Act. In support of Grounds 3A, 3B, 3C, 5, and 6, Counsel for the applicant, Mr Hyde, took the Court to what he said was a passing reference to Islamabad in the interview with the delegate, as well as to the findings in respect of relocation made by the delegate referring to Lahore and to the submissions that were advanced thereafter. Mr Hyde submitted that the applicant did not have a genuine opportunity to address the issue of relocation to Islamabad.

2. Notwithstanding the skilful argument endeavouring to suggest that the issue of relocation may have been flagged in the interview but not the issue of Islamabad, on a fair reading of the interview it is apparent that the delegate raised the issue of relocation with the applicant including relocation to Islamabad. Further, it is apparent that the delegate’s decision in referring to the ability of the applicant to relocate albeit then referring to Lahore said “another city in Pakistan, such as...” Further, it is apparent from the delegate’s decision that there was information identified by the delegate suggesting an ability to relocate to other places that relevantly included Islamabad.

3. More significantly, the submissions advanced by the applicant after the determination of the delegate clearly recognised that the relocation issue related to more than just Lahore. Those submissions expressly addressed Islamabad. The Authority expressly considered in relation to complementary protection whether it would be reasonable for the applicant to relocate. Paragraphs 3A to 3C are in substance an impermissible challenge to the adverse findings by the Authority. The Authority correctly identified the relevant considerations and made adverse findings that were open to the Authority.

4. I reject the submission that the applicant was not on notice as a result of the interview of the issue of relocation relevantly to major cities including Islamabad. On a fair reading of the interview the applicant was on notice of the issue concerning relocation to Islamabad. It is apparent that the applicant was given an opportunity to respond to that issue in the course of that interview. The adverse findings by the Authority in relation to the ability of the applicant to relocate cannot be said to lack an evident and intelligible justification.

5. There was no denial of procedural fairness in the adverse finding about the ability of the applicant to relocate to Islamabad, and no application by the Authority of an erroneous test. Nor, is the Court persuaded that the applicant was misled in the conduct of that interview. Grounds 3A, 3B and 3C fail to make out any jurisdictional error.

6. In relation to Ground 5, it is apparent that the Authority did address the question of reasonableness. I reject the submission that the Authority applied the wrong test in determining whether it was reasonable for the applicant to relocate. Ground 5 is again, in substance, an impermissible challenge to the adverse findings of fact made by the Authority. No jurisdictional error is made out by Ground 5.

7. In relation to Ground 6, it is apparent that the Authority took into account the ability of the applicant to sustain himself in the relocated location as well as the ability of his family to join him in that location. Ground 6 is, in substance, an impermissible challenge to the adverse findings of fact that were open to the Authority. Ground 6 fails to make out any jurisdictional error.

8. Paragraph 10 refers to a DFAT report that was identified in the delegate’s reasons. Mr Hyde drew attention to the fact that prior to the delegate’s decision a request had been made that the representative be provided with other information to be taken into account. There was no denial of procedural fairness by the delegate taking into account the most recent country information, and indeed the delegate was duty-bound to do so. While it was apparent that the applicant was provided with the delegate’s decision that referred to that report, there was no denial of procedural fairness in the conduct of the review before the Authority arising from the “DFAT Thematic Report - Shias in Pakistan 2016”. Ground 10 fails to make out any jurisdictional error.

9. In relation to Ground 11, Mr Hyde accepted that the assertion of bias was advanced in substance on the findings made by the Authority. The adverse findings by the Authority are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not bring an independent, fair and impartial mind to the determination of the matter on its merits. Further, for the reasons I have already given, it is apparent that the applicant was on notice of the issue of the relocation to Islamabad and was given a proper opportunity in the course of the interview to address that issue. The issue of relocation to another city such as Lahore identified in the delegate’s decision put the applicant on notice that there could be another city such as identified in the reasons of the delegate’s decision being Islamabad, which had been raised in the interview. Moreover, the migration representative for the applicant addressed that very topic in the submissions for the applicant. No case of breach of the rules of natural justice or bias are made out as alleged in Ground 11.

10. The amended application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 November 2016