COR17 v Minister for Immigration

[2018] FCCA 772

FEDERAL CIRCUIT COURT OF AUSTRALIA

COR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 772

Catchwords:
MIGRATION – Safe haven enterprise (subclass 790) visa – application for review of a decision of the Immigration Assessment Authority – Part 7AA of the Migration Act 1958 considered – where applicant failed to provide particulars to grounds of application – where applicant sought merits review – allegations that applicant was not permitted to advance his case before the IAA – no substance in assertion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 46A, 473CA, 473DA

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

Craig v State of South Australia (1995) 184 CLR 163

CSR16 v Minister for Immigration and Border Protection (2017) 324 FLR 364
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328
SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: COR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 317 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Melbourne

Delivered on: 21 March 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 13 June 2017 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 317 of 2017

COR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. On 8 February 2018, I ordered –

   a)the order for the final hearing of this proceeding fixed for 23 April 2021 be vacated;

   b)this proceeding go forward under the show cause procedure set out in r.44.12 of the Federal Circuit Court Rules; and

   c)submissions from either party be filed and served seven days prior to today’s hearing.

2. The minister filed and served submissions dated 13 March 2018.  The applicant did not file any submissions in relation to the show cause application, nor did he file an amended application in accordance with the orders of Registrar Stanley made 30 August 2017. 

3. Both parties agreed to this proceeding going forward as a show cause hearing when the case was called over on 8 February 2018.

4. If satisfied that the applicant has not raised an arguable case for the relief he seeks in this proceeding under r.44.12 of the Federal Circuit Court Rules the court may, among the many powers it possesses under that rule, order the proceeding to be dismissed.  However, in accordance with two Federal Court decisions, Siddique v Minister for Immigration and Border Protection[1] and SZTTW v Minister for Immigration and Border Protection,[2] the court (me, in this case) possesses a residual discretion not to dismiss the case even if the applicant fails to show that he has an arguable case for the relief that he seeks.

   [1] (2014) 144 ALD 328

   [2] [2014] FCA 837

5. In this case, the Minister’s delegate and the Immigration Assessment Authority (“IAA”) decided not to grant the applicant the safe haven enterprise (subclass 790) visa that he sought. 

6. In this court, the applicant relied on two grounds only in his application for judicial review of the IAA’s decision.  Expressed without alteration, his grounds were as follows –

   (1)The assessor failed to properly consider my claims. 

   (2)The assessor didn’t give me a chance to comment on one aspect of my claims. 

7. The question for me on the hearing of this application was whether those two grounds raised an arguable case for the relief that the applicant sought, namely the issue of constitutional writs on account of the IAA falling into jurisdictional error.

Synopsis

1. For the reasons that follow, in my judgment the IAA did not fall into jurisdictional error. In my view it is appropriate to dismiss this proceeding under r.44.12 of the Federal Circuit Court Rules as well as under my residual discretion in accordance with the holdings in Siddique and SZTTW.  The applicant must pay the minister’s costs. 

A short factual narration

1. The applicant, a citizen of Pakistan, arrived in Australia on 17 November 2012 as an unauthorised maritime arrival and unlawful non-citizen. He was prevented from lodging a valid application for a visa while in Australia by reason of s.46A of the Migration Act (“Act”), but on 7 January 2016 the minister exercised his power under s.46A(2) of the Act to allow the applicant to lodge his protection visa application.

2. On 31 May 2016, the applicant lodged his protection visa application. 

3. The minister’s delegate decided not to grant the visa on 15 November 2016. In accordance with s.473CA of the Act, the delegate’s decision was referred to the IAA on 15 November 2016. On 15 November 2016 the IAA acknowledged receipt of the referral and provided the IAA’s practice direction to the applicant.

4. On 17 May 2017 the IAA decided to affirm the delegate’s decision to not grant the visa.  On 13 June 2017 the applicant commenced this proceeding in this curt.

How the IAA approached this matter

1. The IAA recorded that the applicant was a Hazara Shia Muslim and a Pakistani national from Karachi, as stated in paragraphs 20 and 21 of its reasons.  The IAA recorded that the applicant claimed to fear that if he returned to Pakistan he would be harmed by Muttahida Qaumi Movement (“MQM”), as was recorded in paragraph 7 of the IAA’s reasons.  The IAA recorded that the applicant claimed to fear harm from militant groups such as Lashkar-e-Jhangvi (“LeJ”) and the Taliban, as was set out in paragraphs 7 and 15 of the IAA’s reasons.  The IAA recorded between paragraphs 8 and 15 of its reasons that the applicant stated in his departmental interview that he had not been harmed by MQM on the basis of his religion and ethnicity, but rather on account of the fact that the applicant had been carrying large sums of money and because MQM thought the applicant had reported attacks to police.  The IAA recorded in paragraph 15 of its reasons that the applicant’s claims concerning LeJ and Taliban did not arise from threats made to him directly but rather because those groups had targeted Hazaras and Shias throughout Pakistan.

2. When considering whether the applicant met the criteria for a refugee under s.5H of the Act, the IAA –

   a)accepted that the applicant was a Hazara Shia who was a national of Pakistan from Karachi;

   b)indicated it had serious doubts that the applicant was targeted by MQM, or any one group, noting that the applicant did not have any basis for his assertion that MQM was responsible and had acknowledged that the individuals present at the attacks were not the same people;

   c)accepted that the applicant may have been the victim of one criminally motivated assault prior to July 2012 and that he may have also been followed on one or more occasions with a view to being robbed, but did not accept that after being assaulted he was targeted by the assaulters on the basis that they believed he had reported the matter to police, referring to the applicant’s evidence as confused and implausible;

   d)found that the applicant’s vague and inconsistent evidence about his assault cast doubt on the veracity of his account and found it was not satisfied the applicant was systematically targeted or that he received death threats or that he was the subject of murder attempts;

   e)found that the applicant was not targeted by MQM or anyone else for any of the reasons in s.5J of the Act or because of a perception he had reported them to the police and that, with the passage of time, there was not a real chance that the applicant faced harm connected to or arising out of the claimed events;

   f)found, based on country information of the applicant’s evidence, that he had not faced harm from the LeJ and other related Sunni Muslim groups in the past, and further, that the risk of the applicant would be harmed in an attack targeted at him as an individual or in a mass casualty incident directed to Shias was small and did not amount to a real chance;

   g)did not accept that the applicant faced a real chance of being a victim of a criminal in incident in Pakistan or that he would face harm on account of his employment with a non-government organisation; and

   h)concluded that the applicant did not meet the requirements of refugee in s.5H and did not meet the criteria in s.36(2)(a) of the Act.

3. The IAA then addressed the applicant’s complementary protection claims.  The IAA –

   a)found, on the same bases as those on which it found that the applicant was not a refugee, that there was not a real risk the applicant would face significant harm in Pakistan on account of his religion and ethnicity or due to the events he claimed led to his departure;

   b)found, based on country information, that the applicant did not face a real risk of significant harm as the victim of criminal assault and that in any event any risk he did face was faced by the population generally; and

   c)concluded that the applicant did not meet the criteria in s.36(2)(aa) of the Act.

4. As mentioned earlier, the IAA decided to affirm the delegate’s decision to refuse to grant the protection visa for grounds of review. 

The grounds of review

1. In the passages above I have already set out the applicant’s grounds of review.  Before going to their detail it must be recorded that in relation to either ground no particulars were given of the alleged jurisdictional error.  In its most classic formulation, jurisdictional error is committed according to Craig v State of South Australia[3] when an inferior tribunal –

   a)asks itself the wrong question;

   b)takes into account an irrelevant consideration;

   c)fails to take into account a relevant consideration; or

   d)makes an erroneous finding or reaches a mistake in conclusion. 

   [3] (1995) 184 CLR 163

2. Yet, there is no rigid taxonomy of the matter as the High Court set out in Kirk v Industrial Relations Commission (NSW).[4] 

   [4] (2010) 239 CLR 531

3. Here, it was not possible to ascertain what, in fact or in law, the applicant said constituted the so-called jurisdictional error.  No insight was given by the two grounds upon which he relied. 

4. A strong line of cases has held that where the grounds are not particularised and when it is impossible to identify what the jurisdictional error is, then the claim is amenable to being dismissed for that reason alone.  Cases in that category include AQN15 v Minister for Immigration and Border Protection,[5] and WZAVW v Minister for Immigration and Border Protection.[6]  There are others. 

   [5] [2016] FCA 571

   [6] [2016] FCA 760

Ground 1

1. When descending further into the detail, ground 1 asserted that the IAA failed to properly consider all the applicant’s claims.  The applicant did not say which claims went unconsidered.  But it seemed to me that in reality the applicant was endeavouring to engage in a merits review of his claim, a practice forbidden on a judicial review application as was made plain by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[7] 

   [7] (1996) 185 CLR 259

2. The IAA set out the applicant’s claims in detail between paragraphs 6 to 15 of its decision.  It considered the applicant’s claims that it would face harm from MQM at paragraphs 23 to 29.  It also considered his claim to face from LeJ and other militant groups between paragraphs 30 and 33.  It also considered his fears of facing criminal violence at paragraphs 34 and 43 of its reasons.  The IAA did not accept the applicant’s claims for the reasons set out in paragraphs 19 and 20 of the minister’s submissions.  The IAA also considered a potential claim not clearly articulated by the applicant that he may face harm rising out of his employment with a non-governmental organisation.  The minister submitted that the IAA’s findings were open to it for the reasons given.  I agree.  The minister also submitted that the IAA was entitled to accept or object or give such weight to the evidence volunteered as that things fit in all the circumstances, authority of which is beyond doubt.[8]  I need not traverse it here. 

   [8] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]

3. Having regard to those matters, I do not agree that the IAA did not consider all of the applicant’s claims. 

4. Ground 1 is dismissed. 

Ground 2

1. In ground 2 the applicant asserted he was not given an opportunity to comment on aspects of his claims.  He failed to say which. 

2. This ground reflected a misunderstanding of Part 7AA of the Act. In CSR16 v Minister for Immigration and Border Protection,[9] I explained how Part 7AA of the Act worked. In that case and others, I surveyed the most recent cases from the Full Court of the Federal Court on Part 7AA of the Act. The regime is complex, yet comprehensive. Principles of procedural fairness have no application to reviews under Part 7AA of the Act, as s.473DA of the Act provides.

   [9] (2017) 324 FLR 364

3. Ground 2 failed. 

4. Taken in combination both grounds failed.  It followed that no arguable case for relief was shown. 

5. It was next necessary for me to consider whether, in the exercise of my residual discretion, I should decline to make an order under r.44.12 of the Federal Circuit Court Rules.  In my view, there was no warrant for that course as no basis for it existed. 

6. Today, I invited the applicant to tell me in his own words what he said the IAA did wrong. He said that he was not given an opportunity to make any verbal submissions to the IAA. That course was as Part 7AA of the Act prescribed. There was no error in not inviting the applicant to say whatever he wanted to say, as most IAA determinations are dealt with on the papers.

7. Before me today the applicant said that contrary to the IAA’s findings, there were numerous illustrations of Hazaras being killed in Karachi.  That was a matter involving country information squarely within the authority of the IAA to assess.  The applicant endeavoured to tell me how many Hazaras are in Karachi and elsewhere.  It seemed to me that that information was beyond the scope of my inquiry on a judicial review application.  In any event, I detected no judicial error, even if that information was permitted to stand. 

8. Today, the applicant told me he did not get an opportunity to retain a lawyer.  I do not accept that.  This case has been on foot since on 13 June 2017.  The applicant has had an abundance of opportunities to obtain advice of a legal nature.  There are any number of pro bono lawyers in this country ready, willing and able to deal with migration cases.  He did not give any explanation about the attempts he made to obtain assistance from any.  At all events, the inability to obtain a lawyer was not a jurisdictional error. 

9. Both grounds failed an there was no reason for exercising my residual discretion in favour of the applicant.  This proceeding must be dismissed with costs fixed in the sum of $3,667.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson

Associate: 

Date:  28 March 2018