Bje19 v Minister for Immigration

[2019] FCCA 3703

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJE19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3703

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (Class XD) visa – whether the Authority’s decision was legally unreasonable and lacked an evident and intelligible justification – whether the Authority misconstrued and misapplied s 473DD(a) of the Migration Act 1958 (Cth) – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476

Applicant: BJE19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 795 of 2019

Judgment of: Judge Street

Hearing date: 28 October 2019

Date of Last Submission: 2 December 2019

Delivered at: Sydney

Delivered on: 20 December 2019

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Labour Pains Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The amended application is dismissed.

DATE OF ORDERS: 20 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 795 of 2019

BJE19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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”) under Part 7AA of the Act made on 6 March 2019 affirming the decision of a delegate not to grant the applicant a Temporary Protection (Class XD) visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. On 13 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 18 February 2016, the applicant applied for a Temporary Protection (Class XD) visa.

3. The applicant claimed to fear harm by reason of his Shia religion, coming from the Turi tribe and being of Pashtun ethnicity. The applicant was born in a particular village in the Kurram Agency. The applicant also claimed to fear harm from militant groups such as Tehreek-e-Taliban (“the Taliban”), Sepah-e-Sahaba, Lashkar-e-Jhangvi and Islamic State. The applicant claimed that he fears he will be targeted because of his religion, ethnicity, membership of particular social groups including people from his home village area and Shia Turi Pashtun from his home village area and by reason of being a returned asylum seeker with actual or perceived links to a Western country.

4. On 30 November 2018, the delegate found that the applicant failed to meet the criteria for the grant of a Temporary Protection (Class XD) visa. On 6 December 2018, the Authority wrote to the applicant explaining that his application for a Temporary Protection (Class XD) visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions. The applicant put on submissions and new information under cover of a letter dated 11 January 2019.

5. The Authority in its reasons identified the background to the applicant’s Temporary Protection (Class XD) visa application. The Authority also had regard to the material provided by the Secretary under the s 473CB of the Act.

6. The Authority referred in detail to the applicant’s submissions and identified new information in those submissions. The Authority’s reasons reflect consideration of the new information against the criteria in s 473DD of the Act to which the Court will return. The Authority also summarised the applicant’s claims.

7. The Authority noted that the applicant did not personally experience any harm in his home region. The Authority did not accept that the applicant has any chance of harm in the reasonably foreseeable future on return to his home area because of events which occurred when the applicant was in another location in 2010.

8. The Authority found that the applicant’s chance of harm as a Shia in his home area from the Taliban or any other anti-Shia militant group in the reasonably foreseeable future is too remote to amount to a real chance. The Authority found that the applicant does not face a real chance of harm for reason of his religion or his membership of the group of Shias from his home region.

9. The Authority referred to Department of Foreign Affairs and Trade (“DFAT”) country information that Pashtuns do not face a higher risk of violence in Pakistan than any other groups based on their ethnicity. The Authority was not satisfied that there was country information before it to indicate that the applicant, as a Pashtun, faces a real chance of harm for reason of his ethnicity. The Authority found that the applicant, as a Pashtun Turi Shia from his home region, does not face a real chance of harm in his home area in the reasonably foreseeable future. The Authority also referred to country information in relation to Islamic State and found that the applicant’s chance of harm from Islamic State is too remote to amount to a real chance.

10. The Authority found that the applicant does not face a real chance of harm for reasons of spending time in the West or being imputed with a political opinion for that reason or being a failed asylum seeker.

11. The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. The Authority found that there were not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being returned to Pakistan from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. Mr Gormly of counsel on behalf of the applicant relied upon an amended application which identified three grounds as follows:

   The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that:

   1. The Authority’s failure to consider exercising its discretion under s 473DC(1) of the Migration Act 1958 (the Act) to obtain the 2019 version update of the September 2017 DFAT Country Information Report Pakistan was legally unreasonable and lacked any evident or intelligible justification.

   Particulars

   a. The DFAT Country Information Report Pakistan was updated on 20 February 2019, after the delegate’s decision and the deadline given to the applicant by the Authority to make submissions to it, and prior to the Authority’s decision on 6 March 2019.

   b. Both the delegate and the Authority relied on the 2017 DFAT Country Information Report Pakistan in their decisions.

   c. Updating its assessment in its 2017 report, the 2019 DFAT assessed “Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith”. The Authority had reasoned as there was no information of attacks on Shias in Parachinar after June 2017 the chance of harm as a Shia in Parachinar (in Kurram Agency) from the Taliban or other anti-Shia militant group was too remote as to amount to a real chance.

   2. The Authority misconstrued and misapplied s 473DD(a) of the Act and thereby constructively failed to exercise its jurisdiction.

   Particulars

   a. The Authority confined its consideration of ‘exceptional circumstances’ to the applicant’s failure to include in submissions to the delegate mention of the applicant’s mental health or that he had sought medical help or that he was taking medication.

   b. The Authority failed to have regard to its own findings that s 473DD(b)(ii) was met in respect in respect of the new mental health information and claims, including that the applicant had been diagnosed with Post Traumatic Stress Disorder (PTSD), or to s 473DD(b)(i) beyond its findings that the applicant could have provided the delegate with the limited information that he was having symptoms and had consulted medical professionals about his mental health.

   c. The information the applicant could have provided the delegate about his mental health or treatment could not have included the diagnosis of PTSD which was made after the delegate’s decision. This diagnosis was the basis for the new claims of stigmatization and inability to access the required mental health services.

   Further or in the alternative to Ground 2

   3. The Authority’s reasoning and conclusion that it was not satisfied there were ‘exceptional circumstances’ under s 473DD(a) of the Act to consider ‘new information’ of the applicant’s mental health and associated new claims was legally unreasonable, it not being made according to logic or upon a sufficient probative basis.

   Particulars

   a. Of this ‘new information’ the Authority accepted:

   - a psychologist’s report diagnosed the applicant with PTSD,

   - new claims that the applicant would be stigmatised because of his recently diagnosed mental illness, and

   - that the applicant would be unable to access mental health services to treat it, was all credible personal information which was not previously known and had it been known, may have affected the consideration of the applicant’s claims per s 473DD(b)(ii) of the Act.

   b. The Authority’s acceptance that s 473DD(b)(ii) was met in respect of this information was inconsistent with its reasoning that this information was not directly relevant to the applicant’s fear of harm in Pakistan “because if it were, some of this information would have been raised in the post-interview submissions”.

Ground 1

1. In relation to ground 1, Mr Gormly tendered extracts from a DFAT Country Information Report - Pakistan which was described as having been published on 20 February 2019 (“the 2019 DFAT Report”). The purpose and scope of the 2019 DFAT Report is to identify updated country information and replace the previous DFAT Country Information Report - Pakistan published on 1 September 2017 (“the 2017 DFAT Report”).

2. There Court was taken to extracts from the 2019 DFAT Report in relation to Pashtun, Turins and, relevantly, paragraph 3.26 which provides as follows:

   3.26 DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.

3. Mr Gormly submitted that the Authority had failed to exercise the statutory power under s 473DC of the Act reasonably in the circumstances of the present case, where the Authority had not identified any consideration of or why the Authority had not obtained the updated 2019 DFAT Report. Mr Gormly referred to the Authority’s decision being delivered on 6 March 2019 and invited the Court to infer that the 2019 DFAT Report was available to the Authority from 20 February 2019.

4. In particular, Mr Gormly relied upon the content of paragraph 3.26 of the 2019 DFAT Report and the reference therein to a moderate risk concerning Turis. Mr Gormly referenced the sectarian violence relating to the applicant’s home region in contending that the Authority had failed to comply with its obligation of legal reasonableness in respect of the exercise of the powers under s 473DC of the Act.

5. Mr Gormly accepted that the 2019 DFAT Report was not country information provided by the Secretary to the Authority under s 473CB of the Act.

6. The Authority in its reasons identified the 2017 DFAT Report. There are a number of footnote references in the Authority’s reasons to the 2017 DFAT Report.

7. The 2019 DFAT Report, on its face, is relevant to an assessment of the applicant’s claims as it is the most recent DFAT country information in respect of Pakistan.

8. Mr Gormly submitted that it could be inferred that the Authority could have obtained the 2019 DFAT Report or information in the 2019 DFAT Report by way of its powers under s 473DC of the Act for the purpose of making a decision in relation to a fast track review decision.

9. Under Part 7AA of the Act, the Authority must not consider any new information unless the requirements of s 473DD of the Act are met. This is a case where there was provided on behalf of the applicant very detailed country information submissions dated 31 October 2018 comprising 40 pages and with 235 footnotes, a Pakistan – Chronology of Events comprising 14 pages and 122 footnotes and further submissions dated 7 November 2018.

10. Given the nature of the claims advanced by the applicant and the relevance of the 2019 DFAT Report to the assessment of the applicant’s claims, unless it could be said that there is no amendment which could possibly have impacted on the assessment of the applicant’s claims, the 2019 DFAT Report was capable in the present case of meeting the criteria under s 473DD of the Act and, in particular, because of paragraph 3.26.

11. After hearing arguments about the 2019 DFAT Report, the Court made orders providing the first respondent an opportunity to put on evidence in relation to the publishing availability and notification of DFAT country information reports to the Authority.

12. On 1 November 2019, the Court granted leave to the first respondent for the filing of affidavit evidence relating to the publication and availability of the 2019 DFAT Report. The affidavit of Ms Wong sworn 25 November 2019 identified that the 2019 DFAT Report was made available to the public by a link on 20 February 2019. The Court was informed that the Authority is not directly advised by DFAT as to when updated country information reports become publicly available.

13. The Court also granted leave to the parties for the filing of further submissions. The applicant’s submissions filed on 2 December 2019 maintain that it was legally unreasonable for the Authority not to consider exercise of its discretion under s 473DC of the Act. The applicant contends that the availability of the 2019 DFAT Report means that the Authority’s decision was affected by jurisdictional error as alleged in ground 1.

14. On the evidence before the Court, the 2019 DFAT Report was available to the applicant and his representative if they had so wished to invite the Authority to consider the same. The Court accepts the first respondent’s submissions that the Authority had no duty to obtain updated country information in circumstances where the Authority wrote to the applicant on 6 December 2018 attaching a fact sheet and practice direction which provided the applicant an opportunity to put on new information and submissions within 21 days. The practice direction also referred to the 21 day opportunity and, in paragraph 31, that reviews will generally be completed within 6 weeks of referral.

15. By email dated 19 December 2018, a request was made on behalf of the applicant for extension of the time to provide submissions to 11 January 2019. On 19 December 2018, the Authority extended the time for submissions from 26 December 2018 to 11 January 2019. On 11 January 2019, submissions were provided on behalf of the applicant to the Authority comprising 10 pages with 42 footnotes and annexures. On 15 January 2019, further submissions were provided on behalf of the applicant.

16. In these circumstances, there is an evident an intelligible and justification for the absence of express consideration by the Authority of the exercise of its powers under s 473DC of the Act. That evident and intelligible justification arises from the opportunity provided to the applicant by the letter dated 6 December 2018, the information therewith and the extension of time to put on submissions. The fact that the Authority’s decision was made approximately 17 days after the updated country information was available on the DFAT website does not of itself give rise to any legal unreasonableness in respect of the power under s 473DC of the Act.

17. The Court does not accept that the Authority was required to independently take steps to ascertain whether country information had been updated. The availability of the 2019 DFAT Report on the website from 20 February 2019 does not mean that the Authority was required under Part 7AA of the Act to take steps to ascertain whether there was updated country information available which might be the subject of consideration under s 473DC of the Act.

18. Different considerations may arise if there had been an express request by the applicant to take into account the specific identified updated country information prior to the making of the decision by the Authority.

19. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, Mr Gormly submitted that it should be inferred that the Authority misapplied or misconstrued s 473DD of the Act in relation to the new information in respect of the applicant’s mental health. In particular, Mr Gormly referred to the diagnosis of post-traumatic stress disorder made after the delegate’s decision which was relied upon as the basis for new claims of stigmatisation and an inability to access the required mental health services.

2. The Authority identified that there was new information provided together with submissions dated 11 January 2019 at paragraph 4 of its reasons. The Authority, at paragraph 6 of its reasons, identified the new information in relation to the applicant having recently seen a psychologist and being prescribed anti-depressant medication.

3. The Authority referred to the claim that the applicant would be stigmatised in Pakistan because of his recent diagnosed medical illness and that he would be unable to access adequate health services. The Authority also referred to the psychologist’s report and the diagnosis of an adjustment disorder with mixed anxiety and depressed mood and post-traumatic stress disorder. The Authority also referred to the applicant’s detailed submissions which addressed both limbs of s 473DD of the Act in relation to the applicant’s new information starting at p 252 to 254 of the Court Book.

4. The Authority referred to having considered whether there were exceptional circumstances to consider the new information relating to the applicant’s mental health. The Authority referred to the applicant’s submissions seeking to link the new information to the applicant’s fear of harm in Pakistan. The Authority referred to the TPV interview in August 2018 where the applicant was asked whether he had consulted a health professional in Australia and whether he had ever been diagnosed with a mental or physical illness, and that the applicant had said no. The Authority also referred to the applicant having indicated that he was feeling some pressure and tension in relation to his visa application and family issues, but that he was too busy with work to go to a doctor.

5. The Authority observed that there was no explanation provided by the applicant as to why the applicant did not provide some of this new information to the delegate prior to the decision being made on 30 November 2018. In that regard, the Authority noted that the applicant must have consulted a doctor to obtain anti-depressants in October 2018 and that the applicant first consulted a psychologist in October 2018.

1. The Authority expressly took into account that the psychologist’s report post-dates the delegate’s decision and could not have been provided by the applicant. The Authority, however, found that the applicant could have provided the information that he was experiencing symptoms and consulting medical professionals in relation to his mental health in circumstances where the Authority found that the applicant had been squarely asked about this at the interview.

2. The Authority referred to the post-dated submissions and evidence provided by the applicant on 31 October 2018 and 7 November 2018. The Authority found that there was no mention in either of those submissions to the applicant’s mental health. There was a medical report as to a prescription attached to the submissions dated 7 November 2018 in support of proof as to the residence of the applicant.

3. In these circumstances, the Authority found that the applicant had not explained why none of this new information about his mental ill health was provided to the delegate. The Authority did not accept the applicant’s submission that the psychologist’s report and new information on mental health are directly relevant to the applicant’s fear of harm in Pakistan. The Authority reasoned that, if this was so, some of the information would have been raised in the applicant’s post interview submissions. In these circumstances, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information regarding the applicant’s mental health and the applicant’s associated new claims. The Authority found that it was, therefore, unable to consider this information.

4. There was country information relating to the new information which the Authority found was not relevant because there were not exceptional circumstances to justify considering the new information.

5. In relation to ground 2, Mr Gormly referred to the psychologist’s report, the applicant’s diagnosis of post-traumatic stress disorder and the prescriptions dated 21 October 2018 and 12 January 2019. Mr Gormly referred to the positive requirement made by the Authority in paragraph 6 of its reasons that the new information met the requirements of s 473DD(b)(ii) of the Act. It was, however, accepted by Mr Gormly that the requirements of the provision are cumulative.

6. Mr Gormly submitted that it was the diagnosis of post-traumatic stress disorder that was the basis of the applicant’s claims for stigmatisation and an inability to access health services. Mr Gormly submitted that, having accepted that this was credible personal information within the meaning of s 473DD(b)(ii) of the Act, the Authority’s reasons could not be logically reconciled, giving rise to legal unreasonableness which is the subject of ground 3. Alternatively, Mr Gormly submitted that the Authority had inappropriately confined the meaning of “exceptional circumstances” in applying s 473DD of the Act and had failed to consider all the matters capable of constituting the circumstances, thereby giving rise to a jurisdictional error.

7. In relation to ground 2, there are no circumstances that the Authority, on its face, failed to take into account under s 473DD(a) of the Act. It is apparent that the Authority fully appreciated the applicant’s diagnosis of post-traumatic stress disorder occurred after the delegate’s decision. Further, it is apparent that the Authority in its reasoning in relation to the requirements of s 473DD(b)(i) of the Act was not referring to the diagnosis but was referring to the underlying information. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s detailed submissions and whether the new information met the requirements of s 473DD of the Act.

8. There is no basis in the circumstances of the present case to find that the Authority misconstrued or confined the meaning of “exceptional circumstances” in considering whether the new information met the requirements of s 473DD of the Act. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the Authority provided a logical and rational basis for the adverse finding under s 473DD of the Act. The favourable finding in relation to s 473DD(b)(ii) of the Act does not give rise to illogicality or inconsistency in the Authority’s reasons in respect of the adverse finding that there were not exceptional circumstances to justify considering the new information in the present case. No jurisdictional error as alleged in ground 3 is made out.

2. As the amended application fails to identify any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:

Date: 20 December 2019