BML17 v Minister for Immigration
[2018] FCCA 3160
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BML17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3160 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority acted unreasonably in failing to consider exercise of power under s.473DC of the Migration Act 1958 (Cth) – whether the Authority erred in failing to consider entirety of claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 473CA, 473DC Other materials cited: |
| Cases cited: CRI028 v The Republic of Nauru (2018) 92 ALJR 568 |
| Applicant: | BML17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1057 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 12 July 2018 |
| Date of Last Submission: | 12 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones, Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr A Fisher, HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1057 of 2017
| BML17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority dated 10 March 2017. The Authority affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a protection visa.
Background
The applicant is a citizen of Pakistan who arrived in Australia at Christmas Island on 17 April 2013 as an unlawful maritime arrival. The Minister wrote to the applicant on 30 June 2016 stating he had exercised his power under s.46A of the Migration Act 1958 (Cth) and invited the applicant to apply for a protection visa. The applicant did so on 1 August 2016.
The application for a protection visa was made on the basis that the applicant claimed to fear harm from the Taliban and other insurgent groups for reasons of his being readily identifiable as a Pashtun Turi Shia from Parachinar (by virtue of his name, accent and physical characteristics) and as a result of the general security situation in his home area[1] of the Upper Kurram Agency. While never experiencing harm personally, when working as a taxi driver the applicant claimed that he was warned not to travel to certain areas as he may be kidnapped for ransom because he was a Turi Shia. He also gave evidence that his uncle was killed when travelling to Peshawar from Parachinar. The applicant believed that this was for reasons of religion.
[1] This phrase, and the cognate expression “home territory” are used here only as a concise descriptor and not to indicate that it plays any necessary part in the determination of whether the criteria for a protection visa are satisfied: see CRI028 v The Republic of Nauru (2018) 92 ALJR 568 at [45].
On 21 November 2016 a delegate decided not to grant the applicant a protection visa and the matter was referred to the Authority pursuant to s.473CA of the Act. The Authority received written submissions from the applicant’s migration agent on 19 December 2016 and made its decision to affirm the delegate’s decision on 10 March 2017.
Authority’s decision
The Authority accepted the applicant’s evidence and claims of his religion, ethnicity, family background and work history, including that his uncle was killed by unknown people for unspecified reasons in February 2016.
Although the applicant did not make any claim based on the profile of his grandfather, an elder and respected and wealthy business owner in his village, the Authority addressed the possibility that it might support the applicant. While it accepted that the country information suggested that tribal leaders had been targeted in sectarian attacks, it was not satisfied a real chance of harm was faced by the applicant on this basis because there had been no previous threats made to the applicant or his family for that reason.
The Authority did not accept that the applicant faced any increased risk of harm as a former taxi driver. It found that there was evidence to suggest travel by road in Pakistan could be dangerous; however, it had no evidence to suggest taxi drivers or former taxi drivers, including Shia taxi drivers, were targeted by armed groups in Pakistan.
Although it accepted that incidents of violence may occur in Upper Kurram Agency where the applicant resides, the Authority was not satisfied that there was a real chance that the applicant would suffer serious harm in Upper Kurram Agency “on the basis of his identity as a Shia, as a Shia from a village near Parachinar who is a member of the Turi tribe, as a former taxi driver, as the son of a village or tribal elder, or as a result of the security situation in Upper Kurram Agency” where he would return.
The Authority’s findings at [43] through to [46] are the subject of the grounds of judicial review the applicant has raised and therefore it will be necessary to return to them in some detail later in these reasons. It suffices to observe that the Authority found that the applicant could safely return to his village by vehicle or chartered plane, the latter being an option in view of the wealth of the applicant’s family.
The Authority also found that the applicant had no real chance of harm for reason of being a failed asylum seeker.
In light of those findings, the Authority found that the applicant did not meet the definition of a refugee and so did not satisfy sub-s.36(2)(a) of the Act. For similar reasons, the Authority concluded that the applicant did not satisfy the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
The application to this Court contained three grounds when filed on 7 April 2018. In the applicant’s written submissions dated 2 July 2018 the applicant foreshadowed seeking leave to rely on an amended application whereby the first ground was abandoned and an additional ground was added. The additional ground was addressed by the applicant in his written submissions; the first respondent did not object to the applicant pressing the additional ground. At the hearing, I granted leave to the applicant to file in Court, and rely on, the amended application in the form attached to his written submissions.
Ground 2
In this ground the applicant argues that the Authority unreasonably failed to exercise, or to consider exercising its power to obtain new information from the applicant in relation to the issue of his ability to travel safely to his home territory.
The Authority has the power under s.473DC(3) to obtain new information from a person orally or in writing. Although there is no duty, as such, to exercise that power, the circumstances of a case may mean that the Authority has acted unreasonably if it fails to exercise the power or to consider its exercise: Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 at 494 [82]; see also Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [49]. In CRY16 the Authority found that it was reasonable for the referred applicant to relocate. The Full Court held, at [82]:
... The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The Minister emphasised the differences between this case and CRY16. However, the determination of the reasonableness of administrative decision making depends on a close analysis of the facts and circumstances of each case and is not done by a comparison of the facts of one case with another: Minister for Immigration & Border Protection v SZVFW (2018) 92 ALJR 713 at [84]. The question depends on the context, scope and purpose of the power in question and is necessarily a stringent one: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 376 [108]; SZVFW at [11].
The evident purpose of the power in s.473DC(3) is to enable the Authority to obtain information that was not before the delegate to assist it to form an opinion as to whether the referred applicant satisfies the criteria for the grant of a protection visa. For that reason, the claims of the applicant and the reasons for the delegate’s decision are a starting point for determining whether it was unreasonable not to exercise, or consider exercising that power.
The applicant claimed that he feared harm throughout Pakistan as a Shia Muslim, and particularly a Parachinarian Shia, and also because he had been a taxi driver. As part of her assessment of the security situation throughout Pakistan, the delegate considered country information concerning the movement of Shia people within Pakistan. The delegate found[2]:
[2] Exhibit A, p.167.
... The Thal-Parachinar road remains open and there were no major security incidents on the road in 2015. Armed checkpoints are maintained along the road. DFAT reports that 25 per cent of the Shia people displaced temporarily (TPDs) in the FATA[3] have returned to their places of origin. Other TPDs have settled in Kohat, Hangu, Peshawar and Islamabad where they have established family and community networks.
[3] Federally Administered Tribal Areas.
(Reference added)
The DFAT[4] report referred to in this passage was the DFAT Thematic Report Shias in Pakistan, 15 January 2016.
[4] Department of Foreign Affairs and Trade.
The delegate summarised her conclusion on the risk of harm facing the applicant on return to Pakistan in the following passage[5]:
[5] Exhibit A, p.169.
Therefore, based on the country information available, I am not satisfied that there is a real chance that the applicant would be subjected to significant harm on the basis of being a Shia Muslim, a member of the Pashtun Turi tribe or on account of his work as a taxi driver, or on account of being a returnee from a Western country/failed asylum seeker if he were to return to Shingak village, Parachinar, Upper Kurram Agency, FATA, Pakistan in the reasonably foreseeable future.
(Emphasis added)
The emphasised part of this passage reveals that, although the delegate did not make any express findings about the way in which the applicant could return to his village, it was implicit that he could do so and, given the conclusion that the applicant was not a refugee, that he could do so safely.
The applicant made submissions to the Authority addressing the delegate’s decision. In those submissions, the applicant rejected the findings that the “Kurram Agency is safe because families were returning to the Kurram Agency”[6] and argued that relocation was not reasonable[7]. The submissions relied, in some part, on the DFAT report referred to by the delegate[8]. However, the applicant did not suggest that the journey to the Kurram Agency itself was unsafe.
[6] Exhibit A, p.217.9.
[7] Exhibit A, pp.220 – 221.
[8] Exhibit A, p.220, footnote 20.
The Authority found, at [42], that there was no real chance of the applicant suffering serious harm in the Upper Kurram Agency for any of the reasons claimed by him. Unlike the delegate, it then went on to examine, in some detail, the question of whether the applicant could return safely to that area:
[43] The applicant claims to have departed Pakistan from Lahore airport after travelling by road from Parachinar via Peshawar to Lahore. There is no evidence before me of any risk associated with the use of Lahore airport. DFAT reports that travel by road can be dangerous for all Pakistanis regardless of sectarian, religious or ethnic affiliations. According to DFAT, travellers in remote areas are at greater risk of criminal or militant violence because they are further away from security forces, and many roads in the FATA fit this profile.
[44] DFAT advised in 2016 that it understood that the Thal-Parachinar Road providing access to Parachinar from Peshawar remained open and there had been no major security incidents on the road in 2015. DFAT reported that federal security forces continued to maintain armed checkpoints along the road, which is used by both civilian and military vehicles. The applicant appeared to suggest in the TPV interview that the Thal-Parachinar road was not now open, or at least that incidents on the road had occurred or still occur. While his evidence in this respect was not clear, he did not offer evidence of any specific incidents that had occurred on the road during or following the interview. I note that the applicant provided media clippings in relation to a number of other violent incidents. DFAT reports that it is possible to charter a plane from Peshawar to Parachinar. This represents an alternative means of accessing Parachinar, particularly in view of the wealth of the applicant’s family.
[45] In terms of travel by road from Lahore to Peshawar, as the applicant will be travelling from one major city to another, I am satisfied that the risk to the applicant will be less than that associated with travel on roads in remote areas. I note that the applicant will be required to make a single journey by road and that he travelled safely by road from Parachinar to Peshawar, then from Peshawar to Lahore when leaving Pakistan to travel to Australia.
[46] While I accept that violent incidents and crimes occur on roads in Pakistan, in view of the lack of any credible evidence of recent issues associated with the use of the Thal-Parachinar road, the nature of the journey by road from Lahore to Peshawar, and the fact that the applicant will be making this journey on a single occasion, I am satisfied that the applicant can safely return to his village near Parachinar by flying to Lahore airport, traveling by plane or vehicle to Peshawar and from Peshawar to his village by vehicle via Thal, or by plane to Parachinar.
(Without alteration, references omitted)
The DFAT report referred to by the Authority was the same report relied on by the delegate and referred to by the applicant in his submissions to the Authority.
These facts reveal the following: first, the question of safety throughout Pakistan was always an issue; secondly, given the remoteness of the applicant’s home territory, there was always an issue as to whether the applicant could safely return there; thirdly, at the interview with the delegate (referred to by the Authority as the TPV interview) the applicant himself raised the question of safety on the roads in Pakistan; fourthly, the delegate implicitly found that it would be safe for the applicant to return to his home territory; fifthly, the delegate’s decision relied on a report from DFAT about the circumstances that might affect the applicant in Pakistan; sixthly, the applicant himself had, and relied on that report in his submissions to the Authority; seventhly, the issues concerning the safety of travel in Pakistan were addressed by the Authority by reference to the information in the DFAT report as well as by reference to the applicant’s own evidence.
In those circumstances, it was not unreasonable for the Authority to proceed, as it did, on the basis of the information before it and without either exercising or considering whether to exercise its power to obtain further information by use of its power under s.473DC(3). The issue of travel did not turn on anything personal to the applicant that only he could supply and without which the Authority could not properly fulfil its function of review. All of the material was already there, including the material already put forward by the applicant.
The applicant also raised two further bases to support the argument that the Authority’s decision was affected by unreasonableness: first, that the Authority inferred that it would be safe for the applicant to travel from Parachinar to his village; and secondly, because it found without evidence, that the applicant could afford to charter a plane to fly from Lahore.
I have separated those two matters from the applicant’s other arguments because they raise a different species of unreasonableness, namely, one that depends on the identification of a different type of error. In this case, that error is the making of a finding of fact without evidence. I do not see that this assists the applicant’s argument in respect of ground 2 but will consider it in dealing with ground 4.
The second ground is rejected.
Ground 3
Ground 3 contends that the applicant was denied procedural fairness in the Authority failing, or failing to consider, to exercise the statutory power under s.473DC(3) of the Act to invite the applicant to provide documents and information orally, or in writing, in response to the issues it saw as relevant to the review.
The applicant did not press this ground in light of the decision in Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526.
Ground 4
Ground 4 is that the Authority failed to consider whether the applicant would be at risk outside of his home territory. The particulars to the ground, however, suggest that the real complaint is somewhat different. The particulars state:
The Applicant claimed to fear harm in all parts of the country because of his religion and ethnic identity. The Authority unreasonably assumed that the Applicant would be able to return safely to his home region and work on his family’s farm, leading it to fail to consider whether he would be at risk of harm if he was unable to return to that region.
The applicant’s submissions suggested that the issue concerned the assumption about travel, rather than about working on the farm. This argument is referred to briefly at [27] and [28] above and concerns the lack of a finding by the Authority about the final leg of the return journey from Parachinar to the applicant’s village and the possibility of chartering a flight from Lahore to Parachinar. I will deal with them in turn.
The Authority expressly found that the applicant could safely return to his village:
[46] … I am satisfied that the applicant can safely return to his village near Parachinar by flying to Lahore airport, traveling by plane or vehicle to Peshawar and from Peshawar to his village by vehicle via Thal, or by plane to Parachinar.
The applicant argued, however, that the Authority only gave reasons for finding that it would be safe to return on the roads from Lahore to Peshawar and Thal to Parachinar [45] – [46]. For that reason, he argued, the Authority made a finding without any evidence. I do not agree.
First, the applicant lived in Shingak village and worked as a taxi driver between that village and Parachinar until he left in order to travel to Australia[9]. Next, while he claimed that he was warned not to travel to particular areas on account of kidnappings and targeted killings[10] he never claimed that there were dangers on the road between his village and Parachinar. He did claim that the Thal-Parachinar road was dangerous, but that claim was dealt with by the Authority. Thirdly, the Authority expressly relied on the applicant’s safe travel to Lahore in order to come to Australia and the fact that his return would only involve one journey. Given that the applicant left his village before travelling from Parachinar to Lahore, this reasoning necessarily addressed the return journey from Parachinar to the village.
[9] Exhibit A, p.163.9.
[10] Exhibit A, p.164.4.
For those reasons, the Authority did not overlook, or assume, the question of safety on the final leg of the return journey to the applicant’s home village.
The second complaint is that there was no evidence of either the extent of the wealth of the applicant’s family or the cost of chartering a plane from Lahore to Parachinar. For that reason, there was no basis to infer that the applicant could afford to charter a plane for his home journey. I agree. There was no evidence of the cost of chartering a plane and the only evidence of the family’s wealth was that it was “fairly wealthy” because it owns agricultural land. The unstated assumptions in this conclusion were, first, that there was cash available to pay for a flight; secondly, if not, that the family’s land could be sold to obtain the cash or otherwise used as security; thirdly, that the family was willing to part with either its cash or land; and fourthly, that the cash or land would be sufficient to meet the cost of chartering a flight from Lahore. There was no evidentiary basis for any of these assumptions and at least some of them were inconsistent with the Authority’s view that the applicant could return to work on the farm.
However, in order to amount to jurisdictional error, a finding made without evidence must be material to the decision: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at [31]. The finding about the availability of air travel was not material because the Authority also concluded that the applicant could safely return home by road. For that reason, the error made by the Authority in this respect was not jurisdictional.
The fourth ground is rejected.
Conclusion
I am not satisfied there is any jurisdictional error in the Authority’s decision and the application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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