Bem19 v Minister for Home Affairs

[2019] FCCA 1269

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEM19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1269

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the Immigration Assessment Authority’s credibility findings were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB, 476

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Applicant: BEM19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 677 of 2019

Judgment of: Judge Emmett

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Sydney

Delivered on: 13 May 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of Pashto interpreter

Solicitors for the Respondents: Mr Siva Valliappan
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 677 of 2019

BEM19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority (“the Authority”), dated 8 March 2019, affirming a decision of a delegate of the first respondent (“the Delegate”), made on 9 January 2019, refusing the applicant a Safe Haven Enterprise Visa (“SHEV”).

2. The first respondent’s written submissions accurately summarise the applicant’s background, his claims in support of his SHEV and the Authority’s review and decision as follows:

   “Background

   2. The applicant is a citizen of Pakistan who arrived in Australia on 27 June 2013 by boat as an unauthorised maritime arrival.

   3. On 7 April 2017, the applicant lodged an application for a SHEV on the basis of the following claims:

   3.1 He was employed as an assistant officer in the Quetta district council and was in charge of ordering and supplying equipment and furniture for local schools. The applicant was close friends with his chief officer who was a Shia Muslim who also believed in child education and supported people in the community. The Taliban along with other militant groups such as the BLA and SSP did not like this and threatened him and his supervisor many times.

   3.2 In June 2013, a Sunni militant group attacked a bus which killed and injured many students. Later in the day, the deputy commissioner whilst visiting victims at a hospital was killed along with a number of others in a bomb blast. Accordingly, the applicant made arrangements to leave for Australia as he fears he will be targeted by the SSP, that the authorities will not be able to effectively protect him and that he would be unable to relocate to another part of Pakistan.

   4. On 24 October 2018, the applicant attended an interview with the delegate in which he claimed that the deputy commissioner had warned him in April or May that he was under threat because of his position at the district council. Further, the applicant clarified that he had left Pakistan in May before the deputy commissioner was killed and that no members of his family have since or ever been threatened by Sunni militants.

   5. On 9 January 2019, a delegate of the Minister made a decision to refuse to grant the applicant the visa and so the matter was referred to the Authority for review.

   6. On 29 January 2019, the applicant made submissions to the Authority which raised new claims, namely, that a representative of a political party who is ex-SSP, came to his home and threatened his father in relation to his whereabouts and that his family have now taken shelter with relatives in another city due to fears for their safety.

   7. On 8 March 2019, the Authority affirmed the decision under review.

   The decision of the Authority

   8. The Authority was satisfied that the applicant had been told by his family that they had been approached by the representative and relocated as a consequence after the delegate's decision and that the new claims related to the continued interest in the applicant by Sunni militants which was material to his claimed inability to return to Pakistan. Accordingly, it considered there were exceptional circumstances to consider the new information. Further, it was satisfied there were exceptional circumstances to consider an updated DFAT report which was published after the date of the delegate's decision.

   9. In relation to his employment, the Authority accepted that the applicant was a professional local government employee whose role was to order supplies and equipment. However, it did not consider he had demonstrated that he had a high profile role as his duties were simply administrative upon direction by his supervisor. It considered his overall account of his fear of harm to be inconsistent and lacking in detail. The Authority found that the applicant had provided an unreliable account of whether he had been threatened by militant groups, and if so, the identity of those groups.

   10. On the basis of country information, the Authority accepted that the supervisor may have received threats as he could be considered to be a high profile Shia in Quetta. However, it noted that despite claiming to have been threatened by the Taliban, in his SHEV interview, the applicant confirmed that he and his family were never threatened by the SSP or other militant groups. In respect of the applicant's claim that his supervisor had warned him of threats being made to them, the Authority found that he had provided no detail as to the nature or source of the threats and noted that it was his own evidence that he had worked in his role for several years, raised a family and purchased property. Given his contradictory evidence and his claim to have never been personally threatened, the Authority did not accept that he was ever threatened or subject to any harm.

   11. In respect of the BLA, the Authority noted that the applicant had not identified any particular threat made to him or provided a basis for why he fears harm from the BLA or any other Balochi separatist groups. In the absence of any further information, it did not accept he had ever faced harm from these sources. In relation to the death of the deputy commissioner, the Authority found that it was not apparent from the country information that he was specifically targeted but rather that he was killed in the course of visiting students who were the target of the attack.

   12. The Authority found that the applicant was unable to explain different accounts for his reason for departing Pakistan, namely, whether he departed after the death of the deputy commissioner or whether he was warned of threats and told to be cautious. It considered on the basis of his varied and inconsistent evidence and vague explanations, that the applicant was never the subject of threats by militant groups in Pakistan or that he was in fear of his life at the time of his departure. Further, the Authority was satisfied that the applicant had departed Pakistan legally and that he now had a valid passport and therefore could return.

   13. In consideration of the new claims raised, the Authority noted that the applicant had provided no country information about the Rah-e-Haq party or the person claimed to have visited his family. Further, it noted that he had not provided any information about the date of the claimed visit, why they were motivated to seek him out six years after he had left, the location of where his family now reside or the means of how they support themselves. The Authority did not place any weight on the photograph provided in support, noting that it was: not apparent who the people were in it or when it was taken; improbable that a relative would take a posed photograph of them being threatened; and, entirely plausible that he visited the community as part of his role as a party representative.

   14. The Authority noted that the applicant in his SHEV interview had claimed that no members of his family had ever been threatened by Sunni militants, that he departed Pakistan unhindered and that his family had not changed address. It did not accept that Sunni militants would have developed an interest in the applicant 6 years later in 2019 or that he had provided any credible explanation as to why this would be the case. It considered it plausible that a member of a local political party had visited the family in 2019; however, it did not accept as credible that the person was seeking out the applicant or threatening him with harm. Accordingly, the Authority did not accept that his family had relocated and sought shelter with relatives.

   15. The Authority noted that prior to his SHEV interview, the applicant's representative had requested that his application be advanced due to his health concerns and provided a letter from a psychologist who had seen the applicant twice for counselling. However, it found his responses to this issue at the interview to be vague, evasive and contradictory. The Authority then noted the applicant's evidence at his interview regarding his various employment in Australia and ability to send significant amounts of money to his family in Pakistan. In those circumstances, it was not satisfied the applicant had any ongoing health concerns diagnosed or otherwise that would preclude his return to Pakistan or that would prevent him from earning a living and supporting his family.

   16. The Authority did not consider that the applicant or his family had faced discrimination or other mistreatment and noted that he had attended university, had held a secure job for several years and that he owns income deriving property. It considered that he would not be precluded from obtaining employment and that he would likely return to his family in Quetta with whom he had been in regular contact with. The Authority found that the applicant had embellished and fabricated elements of his evidence since his arrival in Australia in order to enhance his claim for protection. In addition to the inconsistencies it had already addressed, the Authority noted that the applicant had initially claimed to have been a citizen of Afghanistan but later recanted this and overall did not find him to be a credible witness.

   17. Although the Authority accepted that Quetta continued to suffer incidents of sectarian and separatist violence, the gradual reduction in violence and the applicant's circumstances led it to conclude that he would only face a remote chance of being harmed as a consequence. It found that there was no information before it to believe that the applicant would face a real chance of harm on the basis of his Pashtun ethnicity, Sunni religion and beliefs, former employment, or association with prominent Shias.

   18. For those reasons, the Authority was not satisfied the applicant had met either ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act) and accordingly affirmed the decision of the delegate to refuse to grant the applicant the visa.”

   (Footnotes omitted)

3. The applicant was unrepresented before this Court although had the assistance of a Pashto interpreter. 

4. The applicant attended a directions hearing before a Registrar of this Court on 11 April 2019. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in the English language. 

5. On 23 April 2019, by consent, the timetable made on 11 April 2019 was extended, and the applicant had further time to file and serve an amended application, any further evidence and submissions in support of his application.

6. At the commencement of the hearing this morning, the applicant confirmed that he had not filed any further documents, either in accordance with the directions of the Court or otherwise, and that he continued to rely on the grounds identified in his initiating application, filed on 21 March 2019. Those grounds are as follows: 

   “Fear for life if been returned to Pakistan.

   Due to unsafe circumstance decision should be reviewed.”

7. Each of those grounds was interpreted for the applicant.

8. Before inviting the applicant to make submissions in support of each of the grounds and in support of his application generally, I explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that the Court has no power to interfere with the decision of the Authority unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.

9. I also explained to the applicant that the grounds of his application made bare assertions unsupported by particulars and did not, by themselves, disclose any error capable of review by this Court. I asked the applicant what were the mistakes that he believed the Authority had made. 

10. The applicant said that the Authority had dismissed his case because it concluded there was no danger to his life, that he disagreed with that finding, and that a friend of his had returned to Pakistan and been killed, and that he would suffer the same fate.

11. A fair reading of the Authority’s decision record discloses that the Authority had regard to the material given by the Secretary of the Department under s.473CB of the Act in its consideration of the applicant’s claims. The Authority noted that on 29 January 2019, the applicant sent a submission explaining why he disagreed with the Delegate’s decision. The Authority stated that it had regard to that submission in making its decision.

12. The Authority then identified a new claim made by the applicant that after he was in Australia, a representative of the Rah-e-Haq Party had come to his house in Quetta and enquired about his whereabouts and threatened his father.  The Authority noted that the applicant claimed that during that interaction a member of his family took a photograph which the applicant provided to the Authority.

13. The Authority noted that the applicant claimed that this “new information” only came to his knowledge on 11 January 2019. In those circumstances, the Authority was satisfied that the new information could not have been provided to the Delegate before the decision was made, and was further satisfied that there are exceptional circumstances to justify considering the new information. 

14. The Authority also had regard to an updated Department of Foreign Affairs and Trade report on Pakistan, published on 20 February 2019, and was satisfied that there were exceptional circumstances to justify considering that information.

15. The Authority then accurately summarised the applicant’s claims made in support of his SHEV and the new claims made to the Authority to which I have referred. 

16. The Authority then considered the applicant’s claimed employment with the District Council of Quetta and found that he did not have a high-profile position as a government employee and was, essentially, carrying out administrative functions at the behest of his supervisor. The Authority then considered the applicant’s claims of threats from various named militant groups in Pakistan. However, the Authority did not accept that the applicant, in the position he held in the district council, would have received threats from those militant groups.

17. The Authority also noted that the applicant confirmed that he and his family had never been personally threatened by militant groups, and that there was no evidence that he was ever of any adverse interest to anyone in Quetta.

18. Accordingly, the Authority did not accept the applicant was ever subject to any harm, including threats, in Pakistan. 

19. The Authority also considered the applicant’s claim to fear harm from the Baloch Liberation Army (“BLA”) but found that the applicant had not identified any particular threat made to him by the BLA, and, accordingly, it did not accept that the applicant had ever faced harm from the BLA or Baloch separatists. 

20. The Authority also considered the applicant’s claim of the killing of a Deputy Commissioner. However, the Authority found that, based on country information before it, the Deputy Commissioner was not specifically targeted in the attack as a government employee and, rather, appeared to have been killed in the course of his attendance where the attacks had taken place. 

21. The Authority noted that the applicant stated he left Pakistan due to insecurity but, ultimately, did not accept that the applicant was ever the subject of threats by militant groups in Pakistan or that the applicant was in fear of his life when he departed Pakistan. The Authority noted that the applicant’s current passport was still valid and could be used to return to Pakistan. 

22. The Authority then considered the applicant’s new claim of a continued interest in him by the Rah-e-Haq Party in Quetta. However, the Authority found that the applicant’s new claim lacked any compelling detail such as the date the claimed visit to his family took place, the location of his family and the motivation of the Rah-e-Haq Party to seek out the applicant some six years after he departed Pakistan. 

23. The Authority also noted that the applicant had not provided any information that the Rah-e-Haq Party was engaged in military activity.  The Authority also considered the photograph provided by the applicant in support of this new claim. However, the Authority did not place any weight upon it as it was not persuaded about the identity of the people in the photograph or when the photograph was taken. The Authority found it improbable that a relative would decide to take a posed photograph of an elderly, sick relative being threatened. Further, the Authority found it plausible that if the person depicted was from the Rah-e-Haq Party that he may have been visiting the community in his role as a party representative. 

24. The Authority referred to the applicant’s statement in his SHEV that no members of his family had been threatened by Sunni militants in Pakistan before he departed, and did not accept that the Sunni militants would have developed an interest in him six years later in 2019. 

25. The Authority then considered the applicant’s state of health and his information provided at the SHEV interview on 4 June 2018 that he was losing his memory and had been consulting a psychologist. The Authority also noted that the applicant stated that if he is busy he does not have symptoms, and noted that the Delegate had put to the applicant that he did not appear to have any diagnosed medical condition that impaired his ability to earn a living in Australia. The Authority noted that that was a relevant consideration in possible relocation in Pakistan. 

1. Ultimately, the Authority was not satisfied that the applicant had any ongoing health concerns that would preclude his return to Pakistan or that would prevent him from earning a living and supporting his family. The Authority found that if the applicant returned to Quetta he would not be precluded from obtaining employment with the public service or using other skills that he has obtained.

2. Ultimately, the Authority found that the applicant had embellished and fabricated elements of his claims since his arrival in Australia in order to enhance his claim for protection. The Authority noted that the applicant claimed that the death of the Deputy Commissioner was what prompted his decision to leave Pakistan but later acknowledged that the Deputy Commissioner was, in fact, killed after his departure. 

3. The Authority did not find the applicant to be a credible witness.

4. The Authority had regard to country information before it, and while it accepted that Quetta continued to suffer incidents of sectarian and separatist violence, there had been a gradual reduction in violence. Having regard to the applicant’s circumstances, the Authority concluded that the applicant would not face a real chance of harm as a consequence of sectarian and separatist violence. The Authority concluded there was no information before it that the applicant would face a real chance of harm as a target of militant terrorist or sectarian violence in Quetta, or that he would face any harm from any person in Pakistan for the reasons claimed.

5. Ultimately, the Authority found that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, and that he also did not meet the complementary protection criterion in s.36(2)(aa) of the Act.

6. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

7. The Authority considered in detail all claims made by the applicant, including his new claims, in reaching its findings. As stated above, neither of the applicant’s grounds, nor any of the complaints made by the applicant this morning identify any jurisdictional error on the part of the Authority.

8. The applicant’s assertion that a friend of his has returned to Pakistan and been killed is not capable, without more, of identifying any error in the decision of the Authority, nor does it, without more, support the applicant’s assertion that he will be killed if he returns to Pakistan because of the death of his friend. 

9. As set out above in these reasons, the Authority’s adverse credibility findings were squarely based on the applicant’s written material and the oral evidence that he gave at the SHEV interview. The Delegate’s decision makes clear that the Delegate did not find the applicant to be a credible witness. Further, the inconsistencies and implausibility which the Authority found to exist did not relate to objectively minor matters, but went to the core of the applicant’s claims and his credibility. 

10. After the hearing had finished and an application was made by the first respondent for costs, the applicant was invited to say whatever he wished in response to that application. The applicant then referred to the summary by me in the Authority’s decision record that the applicant had claimed that the death of the Deputy Commissioner was what prompted his decision to leave Pakistan but later acknowledged that the Deputy Commissioner was killed after his departure (see paragraph 27 above). 

11. In a statement signed by the applicant, dated 27 March 2018, the applicant stated that on 15 June 2013, the Chairman Deputy Commissioner, Mr Abdul Mansoor Kakar, was killed by militant groups, and that the applicant was really scared to go back to Pakistan because he and his family would be killed. I asked the applicant if he had told the Delegate that the Deputy Commissioner was killed after his departure, and he confirmed that he had. 

12. It is clear that the adverse findings by the Authority in respect of the applicant’s credibility were, in part, supported by inconsistencies in the applicant’s evidence, such as this example. It was open to the Authority to find that evidence inconsistent, and it did so.

13. The applicant now asserts that what was contained in his written statement may not be correct. However, on the information and material before the Authority, it was open to the Authority to make the finding that it did in relation to that inconsistent evidence.

14. Otherwise, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Authority’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis, nor were they unreasonable or without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

15. The reasons the Authority gave for the findings that it made were detailed, comprehensive and referred to the material before it. The applicant has not identified any jurisdictional error in the decision of the Authority, and none is apparent on the face of the Authority’s decision record or the manner in which it conducted its review.

16. In the circumstances, the applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Authority. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

17. In the circumstances, the Authority’s decision is not effected by jurisdictional error. Accordingly, the proceeding before this Court, commenced by way of application filed on 21 March 2019, should be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 16 May 2019