CSO19 v Minister for Immigration

[2019] FCCA 3212

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSO19 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3212

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the applicant was denied the opportunity to meaningfully present his claims and evidence – whether the IAA denied the applicant procedural fairness – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 473DA, 473DD, 476

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475

Applicant: CSO19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1761 of 2019

Judgment of: Judge Nicholls

Hearing date: 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Sydney

Delivered on: 14 November 2019

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 11 July 2019 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1761 of 2019

CSO19

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 made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 July 2019, seeking review of the decision of the Immigration Assessment Authority (“the IAA”) which, on 7 June 2019, affirmed the decision of the Minister’s delegate (“the delegate”) not to grant a Safe Haven Enterprise Visa (“SHEV”) (Subclass 790) (a “protection visa”) to the applicant.

2. In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).

Background

1. The applicant is a citizen of Pakistan (item 6 at CB 3 and item 17 at CB 42) and Shia Islam religion (item 13 at CB 3 and item 33 at CB 44). He arrived in Australia on 5 June 2013 (item 46 at CB 49). The applicant applied for a protection visa, which was received by the Minister’s department on 23 June 2017 (CB 129.4, CB 130.3, and CB 25 – CB 75 generally). The applicant received a letter acknowledging receipt of a valid application for a protection visa from the Minister’s department on 28 July 2017 (CB 128 – CB 131). He made his claims to protection in a written statement that was attached to the application for the protection visa (CB 71 – CB 75).

2. An officer of the Minister’s department wrote to the applicant on 28 July 2017 requesting that the applicant provide further documentary evidence of his: “…identity, nationality or citizenship…” pursuant to s.91W(1) of the Act, within 28 days after he was taken to have received the letter (CB 132 – CB 134). Documents were provided by the applicant to the department (CB 76 – CB 127, and see CB 146.3).

3. In April 2019 the applicant was convicted in Australia on the charge of: “…use [of] carriage service to groom under 16 [years] for sex” and was sentenced to 18 months imprisonment, with a non-parole period of six months ([41] at CB 189 – CB 190).

The Delegate

1. The applicant was invited to an interview (“the SHEV interview”) with the delegate on 4 April 2019. At that time he was held at the Grafton Correctional Centre (CB 135 – CB 136). The interview was conducted by telephone. The applicant was sent a letter immediately following his interview on 4 April 2019 from the delegate, requesting that the applicant provide information about visa fraud, which he had claimed to have knowledge of during his interview (CB 137 – CB 138).

2. The applicant’s claims were summarised by the delegate at [15] in the delegate’s decision record (at CB 182 – CB 183):

   “15. …

·    In 1990 the applicant was born in Quetta, Balochistan Province.

·    The applicant is a practising Shia Muslim. He attended the local Shia mosque and participated in Shia religious ceremonies in Quetta. His father has a close relationship with the imam of their mosque.

·    The applicant is identifiable as a Shia because of the scars on his back from self-flagellation, the mosque he attends, the religious days he observes and his National Identity Card (NIC) which displays his address in a Shia district of Quetta.

·    The applicant ran a cosmetics business and travelled regularly for work.

·    In the lead up to Muharram in 2008, Sunni terrorist groups including the Taliban, Lashkar-e-Jhangvi (LeJ) and Sipah-e-Sahaba Pakistan (SSP) (‘the terrorist groups’) threatened the applicant and his family by phone. Threat letters were thrown into his car, which warned he would be killed because of his Shia religion. The applicant was unable to identify who the letters were from but they were directed at himself and his family.

·    Soon after, unknown assailants shot at the applicant and his uncle when they were making a delivery. The applicant’s right eye was damaged by shattered glass and his uncle was wounded. They were treated in hospital and lodged a police report but no action was taken. The applicant received a letter saying next time he wouldn’t escape safely. The applicant and his uncle stopped making deliveries themselves, and set up an office at home.

·    Around January 2013 an attack at a snooker club killed approximately 90 people. After this the applicant’s family could not go outside for business, health or education purposes. The government cordoned off the area but the terrorists threatened to attack again.

·    Around this time the terrorist groups again threatened the applicant and his family by phone and by mail, as well as threatened other Shia businesses in the area.

·    In May 2013 a terrorist group called the applicant’s father and told him the applicant would be killed because he was a Shia and a businessman. Lots of other Shias in the applicant’s home area were being killed and his father wanted him to leave.

·    In May 2013 the applicant left Pakistan legally, using his own passport, and in June 2013 the applicant arrived in Australia by boat.

·    In August 2016 the applicant’s father told him the terrorists groups had called him and had threatened the applicant. The same groups have threatened his brothers who are hiding in Islamabad, where they are still not safe and unable to work.

·    The terrorist groups know the applicant is in Australia and if he returns to Pakistan, government spies will inform them that he has returned. When he shows his identity card to obtain employment and other government services, he will be identified as Shia and the information will be relayed to the terrorist groups.

·    The applicant fears the terrorist groups will seriously harm or kill him because he is a Shia and a businessman, and because he left the country.

·    The applicant believes the Pakistani government cannot protect him from the terrorists, who have power and influence.”

[Error in the Original.]

1. On 17 April 2019 the delegate notified the applicant that his application for a SHEV (protection visa) had been refused, as he did not satisfy s.36(2) of the Act (CB 139 – CB 165). The letter also advised the applicant that the decision would be referred to the IAA for review (CB 139.9). The matter was referred to the IAA on 1 May 2019 (CB 166 – CB 167).

The IAA

1. Email correspondence was sent to the IAA by the Refugee Advice & Casework Service (“RACS”) on 14 May 2019, which attached written authority from the applicant allowing RACS to receive a copy of his file held by the IAA, and requesting a three week extension of time, and to allow RACS to provide further documents to the IAA, in order for RACS to provide the applicant with legal assistance (CB 168 – CB 169).

2. The IAA replied to the request from RACS on 14 May 2019 via email. It consented to the request, and provided copies of the following documents over four separate emails: Refusal Notification and Decision Record; SHEV Application; Supporting Documents; and Interview Recordings (CB 170 – CB 173). In addition, the IAA wrote to the applicant on 14 May 2019 noting the correspondence received from RACS, and notifying him that the request for additional time to provide submissions and new information had been granted, and that he had an extension of time until 29 May 2019 for that purpose (CB 174 – CB 175).

3. On 20 May 2019 the IAA sent a letter to the applicant in response to a telephone call from him on that same day, informing him that no correspondence had been received by the IAA relating to an email the applicant claimed to have sent containing a request for an interview (CB 176).

4. The IAA sent a letter to the applicant on 29 May 2019 informing him that his address for service had been “confirmed and updated” to a PO Box at Grafton Correctional Centre, and enclosed “courtesy copies” of correspondence sent to him on 1 May 2019, 14 May 2019, and 20 May 2019, after attempts to send the applicant this earlier correspondence had been unsuccessful (CB 177).

5. During a phone call with the IAA on 31 May 2019, the IAA advised the applicant that he had the opportunity:  “…to make an oral submission as to why he disagreed with the delegate’s decision, including any claim or matter which he believed had not been considered” ([5] at CB 180). The applicant advanced the following new claims (at CB 180 – CB 181):

   “6. ...

   ·    He has given speeches at Shia festivals, during which he did not promote sharia law. When the Sunni community learnt about his views and his statements against their religion a Sunni cleric issued a fatwa that he must be killed.

   ·    He has also publicly condemned the Pakistani authorities for failing to protect the Shia community and for this reason he became a person of adverse interest to them.

   ·    Due to his disability (loss of vision in his right eye following an attack on him and his uncle in 2008), his limited English, his lack of completed qualifications, and lack of other skills, he cannot live independently of his family in Pakistan.

   ·    His father is handicapped due to a problem with his right leg and his uncle has been paralysed since the 2008 attack and is not safe in Quetta.

   ·    As a result of his crime in Australia and his illegal departure from Pakistan, the Pakistani authorities will use his personal documents to fabricate a case against him, kidnap, torture and kill him. He did not advise the delegate about this claim because he did not want the Australian authorities to think that he would engage in illegal activities here.

   ·    At the time of his arrest in Australia, he called one of his friends to come and pick up his personal property, which included a CD of his interview. His friend now knows why the applicant is in jail and has told all the applicant’s family and friends in Quetta. The applicant’s father is a very strict man, and because of the nature of the applicant’s crime, will not allow him to live with their family, or support him, if he were to return.”

1. The IAA was satisfied that at the SHEV interview: “…the applicant was given a meaningful opportunity to present his case and [he] discussed his claims at length with the delegate” ([9] at CB 181). In relation to these new claims, the IAA was not satisfied that exceptional circumstances existed to: “…justify consideration of these particular new claims, or that the matters in s.473DD(b) [were] met” (at [10], [11], and [12], CB 181 – CB 182). The IAA also considered that:

   “The fact that the applicant did not mention these new claims earlier (some of which contradict the evidence he gave during his SHEV interview), and has provided minimal details about them, raises real questions, in the absence of any explanation, as to whether the new claims are at all believable…”. ([10] at CB 181).

The IAA ultimately considered these new claims themselves to be “inherently unbelievable” ([12] at CB 182).

1. The applicant was notified of the unsuccessful outcome of his protection visa assessment by letter on 7 June 2019 (CB 178), and a copy of the IAA’s decision was attached to this correspondence (CB 179 – CB 195).

2. The Minister’s written submissions set out a summary of the IAA’s findings. Given the evidence before the Court, it is a fair summary (at [14] – [19]):

   “14. The IAA did not accept the new claims because they all raised matters which could have been discussed with the delegate, no reasonable explanation had been provided as to why they were not raised with the delegate, some were inherently unbelievable and the IAA was not satisfied that exceptional circumstances existed to consider the new claims: CB 181 [7] – [14].

15. On 7 June 2019, the IAA affirmed the delegate's decision refusing the visa (CB 179 - 195). For the most part, the IAA considered the applicant's claims to be not credible due to the significant development of those claims over time, and the various inconsistencies and implausibility of his evidence. The IAA did make findings accepting that:

(a)the applicant was from Quetta, Balochistan Province, Pakistan and was a practising Shia Muslim, who regularly attended mosque while in Quetta (at [19]);

(b)the applicant's father had a close relationship with the imam at their mosque (at [19]);

(c)the applicant's family home is located in what is known to be a Shia neighbourhood in Quetta and could, in some circumstances, lead someone to infer that he was a Shia (at [19]);

(d)the applicant's participation in Shia religious ceremonies had left scars on his back (at [20]);

(e)the applicant's attendance at Shia mosques and public ceremonies would identify him as Shia (at [20]);

(f)in 2008, threat letters were thrown into the applicant's car and his family received various threats as part of general unrest not specifically addressed to the applicant or his family (at [21], [26]); and

(g)the applicant and his uncle were shot at in their car in 2008 as part of general unrest, resulting in the applicant sustaining a serious eye injury (at [23], [25]).

16. The IAA also made a number of adverse credibility findings at [19], [20], [21], [23], [25], and [32] based on the inability of the applicant to provide consistent evidence to support his claims. Specifically, the IAA did not accept that:

(a)the applicant was a businessman or a shop owner (at [22], [26]);

(b)if the applicant had been the intended victim of a targeted shooting, that working from home would deter his assailants from attempting to kill him again, that he received a specific threat of any type following the incident, or that his uncle's business closed down as a result (at [25]);

(c)there had ever been an attack on the applicant's family home in Quetta (at [32]);

(d)the applicant's sister was living with relatives as a result of an attack on the applicant's family home in Quetta (at [31]);

(e)the applicant's brothers were ever hiding in Islamabad as a result of terrorist groups calling to look for the applicant or his brothers (at [32]);

(f)that "spies" continue to visit the applicant's family home and would inform the terrorist groups if he returned to Pakistan (at [32]).

17. While the IAA accepted that the security situation in Quetta had been poor between 2007 and 2013, it found, based on the country information, that the Pakistan government had taken steps to reduce terrorism and violence in the region and that, as a Shia, he was not likely to be the target of the current attacks and such a chance was remote (at [34] – [39]).

18. The IAA also then considered whether the applicant would face harm from the authorities for returning from Australia as a failed asylum seeker or on the basis of his criminal conviction in Australia and held that there was no such risk (at [40] – [43]).

19. Accordingly, the IAA held that the applicant did meet the requirements of the definition of refugee in s 5H(1) the Act and was not satisfied that the applicant had a real risk of significant harm of the type envisaged by s 36(2)(aa) of the Act upon return to Pakistan (at [44], [47] - [49]).”

The Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. I have not any Legal aid.
   2. I did not much enough time for protection claim docs.
   3. IAA made the decision without sufficient time promptly.”

[Errors in the Original.]

Before the Court

1. The applicant first appeared before this Court on 24 July 2019. Orders were made, by consent, listing the matter for final hearing, and setting out a timetable for the filing of documents. Relevantly, those orders provided that the applicant was to file and serve any affidavit containing additional evidence to be relied upon (including any transcript of an interview), and any amended application, by 4 September 2019. Further, that the first respondent was to file and serve any affidavit containing additional evidence by 18 September 2019. No further documents have been filed by the applicant.

2. On that occasion (24 July 2019), the applicant appeared in person, with the assistance of an interpreter in the Urdu language. The applicant was (and continues to be) in immigration detention at that time, and expressed a desire to obtain legal assistance, informing the Court that he had spoken to RACS about retaining a lawyer.

3. At the final hearing the applicant appeared in person. He was again assisted by an interpreter in the Urdu language. It was clear that the applicant’s command of English was good. However the hearing continued with the assistance of the interpreter, other than for one part of the applicant’s submissions, when the applicant wanted to speak in English.

4. In relation to the grounds of the application, it was clear from his various submissions to the Court that the applicant laboured under the misapprehension that he was entitled to a publicly funded lawyer to assist him in his application for the protection visa, and in the process of the assessment by the IAA (see further below).

5. For the remainder, the applicant sought to emphasise that the assistance offered to him by RACS was limited, again, in part, because they could not find a lawyer to assist him, and that his capacity to provide documentary evidence to the IAA was limited because he was in remand at the relevant time (see further below).

6. As set out above, there are three un-particularised statements in the applicant’s grounds of his application to the Court. Despite opportunity, the applicant has not filed any amended application, evidence by way of affidavit, or written submissions.

7. Both of the applicant’s complaints, arising from the grounds of the application, were mirrored in the applicant’s oral submissions to the Court at the final hearing.

8. As set out above, the applicant sought to put two complaints before the Court.

9. One, the applicant complains that he has not had the assistance of any legal aid. In context, this appeared to be a complaint that he had no legal assistance, advice, or legal representation, during the time of the processing of the application for the visa, or before the IAA.

10. As the Minister submits, there is no right to legal representation in migration review proceedings (AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [51] per Flick, Griffiths and Perry JJ). Before the Court, the applicant appeared to confuse the current proceedings with criminal proceedings, of which he has had some recent experience. For example, the applicant referred to the Minister’s legal representatives as “the prosecution”.

11. The applicant did have some assistance during the processing of the application for the visa (see item 7 at CB 38) and the assessment by the IAA (see at CB 168) from RACS. Further, in his application for the visa, the applicant claimed that he spoke, read, and wrote in English (item 29 at CB 44).

1. In the circumstances, there is nothing to indicate that the applicant was denied, or could not meaningfully present his claims to protection.  Ground one does not reveal jurisdictional error in the IAA’s decision.  (See further below).

2. The second complaint is that the applicant did not have sufficient time to provide documents in support of his protection claims, and the IAA did not give him “sufficient time”.

3. The applicant’s complaint can only properly be understood as being a claim of a denial of procedural fairness by the IAA, in that he was denied a fair opportunity to present his case.

4. Implicit in the applicant’s complaint is the proposition that the IAA is obliged to provide procedural fairness to an applicant, with reference to the principles of procedural fairness at common law.

5. This complaint fails to appreciate the operation of s.473DA(1) of the Act, and Parliament’s intention in enacting Part 7AA of the Act. That is, the clear and relevant statutory intention is that the IAA’s conduct of the assessment, the fair processes it must apply, are exhaustively explained in that part of the Act.

6. As the High Court, with respect, recently found in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (“BVD17”), the Full Federal Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 “correctly stated” that “[t]he consequence of the codifying effect of s.473DA(1)” is that procedural fairness: “… is not the “lens” through which the content of the procedural [fairness] obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined” (at [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

7. This, as the High Court found, is subject to: “…the extent that procedural unfairness overlaps with legal reasonableness” (at [34] of BVD17).

8. As was further said at [35] of BVD17:

   “35. Consistent with the earlier conclusion of the Full Court in BBS16^[32], the entirety of the content of the Authority's obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.”

1. Before the Court the applicant submitted that while he was in remand (in relation to criminal charges), he was denied access to the internet, and that his capacity to communicate with RACS was limited to 6 minutes at a time.

2. It must not be forgotten, as I sought to explain to the applicant, that the issue for current consideration is whether the IAA’s decision is affected by a “legal mistake” (jurisdictional error). The applicant’s specific complaint that he was denied the opportunity to submit documents to support his claim to protection requires a temporal focus on the application for the visa, the referral for assessment, and the applicant’s time in remand.

3. The applicant arrived in Australia by boat on 26 June 2013. He was interviewed on arrival as an “Irregular Maritime Arrival” (CB 1).

4. On 7 July 2016 the Minister’s department wrote to the applicant, who by this time was living in the Australian community (in Lismore NSW), and invited him to apply for, in effect, a protection visa (CB 19). As was made clear, the Minister had intervened pursuant to s.46A(2) of the Act to allow him to do so in circumstances where s.46A(1) of the Act prevented such an application.

5. It appears the applicant took no steps to do so. The Minister’s department again wrote to the applicant nearly a year later on 9 June 2017 (CB 21 – CB 24). It put him on notice, not unreasonably in the circumstances, that he had until 1 October 2017 to make his application (CB 21).

6. He made his application on 22 June 2017 (“Part B” at CB 29). The form that he used for that purpose included the following information (“Part A” at CB 26):

   “Other evidence and supporting documents
   You should provide with your application certified copies of:

   ·any documents/evidence that you think will support your claim for protection;

   …”

1. It is to be remembered that in the same application form the applicant declared that he could speak, read, and write, English (item 29 at CB 44).

2. It did not require the services of a lawyer to provide documents which the applicant now says would have supported his case. In any event, he had some assistance in completing the form from RACS (item 7 at CB 38).

3. At this time (22 June 2017), there is no dispute, that the applicant was not in remand or in detention.

4. The application for the visa was accompanied by a written statement made by the applicant (CB 71 – CB 75). While there is a “disclaimer” in the statement as to the claimed limitations of the assistance offered by RACS, what remains is that at least 22 months before the delegate’s decision, let alone the period of the assessment by the IAA, the applicant would have been on notice that if he wanted to submit documents in support of his application, he should do so (see further below as to the documents he now says he wanted to provide).

5. The applicant was taken into remand, on his own submission to the Court, on 5 July 2018. That is, the applicant had over a year from when he was put on notice to provide documents to support his case, to provide such documents.

6. There was no satisfactory explanation from the applicant now to explain why he did not do so. As set out below, the documents in question all related to events in Pakistan, and predated, by some years, his being taken into remand.

7. The applicant was interviewed by the delegate by telephone on 4 April 2019 (CB 135). The applicant, by that time, was being held in remand.

8. Before the Court the applicant submitted (no evidence was provided) that he had told the Minister’s department that he had “paper clippings” of events in 2008 in Pakistan.

9. The matter of corroborating documents that the applicant now says he wanted to put before the IAA, was raised before the delegate (at CB 148.8 – CB 149.2):

   “At the end of the interview, the applicant stated that he had some of the threatening letters and that his father may have voice recordings of the threatening phone calls. The applicant did not state which phone calls his father may have voice recordings of and confirmed that such calls would not be in English. I note that even if a voice recording was submitted, verifying the identities of the interlocutors and details of the call would be indiscernible. The applicant also stated that he could submit a letter from “a Shia organisation” which could verify the attacks he endured in Pakistan.

It was put to the applicant there were no concerns regarding his Shia faith and that there were no concerns regarding the attacks he endured. The applicant was told that he does not need to provide evidence (letters or recordings) to support those claims as there are no concerns regarding their veracity. Specifically, I accept that he and his family received generic threatening letters from Sunni extremist groups. I also accept that his father received generic threatening phone calls from members of the same or similar groups.”

1. The applicant was on remand during the time of the interview with the delegate. However, this of itself does not lead to any indication that he was denied a meaningful opportunity to present relevant evidence, or more importantly, given the circumstances, to meaningfully present his claims to the delegate. The matters which these documents were said to corroborate were accepted by the delegate.

2. The documents which the applicant says he wanted to provide were apparently said to be documents to support his claim that as a Shia Muslim he was at risk of harm from Sunni, and similar, extremist groups.  The documents were apparently (no evidence was produced to the Court) documents relating to threats received by his father by telephone and in writing, and subsequent attempts to report those threats.

3. Importantly, as derived from the applicant’s submissions, the documents all predated the delegate’s decision, and indeed, the application for the protection visa. While the applicant was in remand at the time of the interview with the delegate, there is no satisfactory explanation now as to why those documents were not provided to the delegate at the time of the making of the application for the visa (23 June 2017) in circumstances where the applicant did provide some other documents (CB 76 – CB 127).

4. Further, there is no satisfactory explanation from the applicant now as to why he did not provide these documents up until the time he was taken into remand (on his own account, over 12 months later).

5. The applicant raised the matter of these documents with the IAA during the telephone interview (at a time when he was in remand).

6. The IAA reports as follows ([14] at CB 182):

   “14. During the phone call the applicant claimed to have corroborating documents to support his claims for protection, such as newspaper cuttings from 2008, regarding the incident in which he was shot, and documentary evidence from 2013, showing his father had tried to lodge a police report about the attempt to kidnap the applicant. Towards the end of the phone call the IAA asked the applicant if he had anything else to say, and he responded that he would not be providing further documents because under law he does not have any access to the internet or email at the correctional centre and so is unable to obtain anything from his family. The IAA again asked if the applicant had anything else to add and he confirmed that he did not. The applicant did not ask for further time to provide new information to the IAA, and on the evidence I am not satisfied that he intends to do so.”

1. Before the Court the applicant repeated what he told the IAA at the telephone interview on 31 May 2019. That is, he was unable to lodge the documents because he could not access the internet or email while he was on remand.

2. The date of the telephone interview was 31 May 2019. The applicant had been on remand since 5 July 2018.

3. Yet during this time the applicant was plainly able to communicate with RACS. On 14 May 2019 RACS advised the IAA that it had “written authority” from the applicant for the IAA to provide a copy of his file to it. RACS asked for an extension of time within which to provide documents to the IAA (CB 168).

4. The applicant’s authority dated 14 May 2019 (CB 169) was obviously provided to RACS by the applicant, who then forwarded a copy to the IAA while the applicant was in remand.

5. The IAA granted an extension of time for the purpose of providing further documents (CB 174).

6. As to the documents identified now by the applicant, which appear to be the documents referred to by the IAA at [14] of its decision record (CB 182 and see [57] above), it is to be remembered that those documents were said to corroborate the applicant’s claim of attacks on his family in 2008, and his father’s attempt to lodge a police report in 2013. [It was never satisfactorily explained why his father waited five years to do this].

7. In any event, the IAA accepted that he had been targeted in the past ([21] at CB 185):

   “21. In the applicant’s written SHEV statement he claims that while he was in Quetta, letters to the effect of “you are Shia and you have to be killed” were thrown into his car, and that in the lead up to Muharram in 2008 he and his family also received threatening phone calls. In the applicant’s written SHEV statement he claims that while the identity of those making the threats was unclear, the phone calls and letters were directed at himself and his family because they are practising Shia Muslims. During the SHEV interview the applicant told the delegate that other Shia families in his neighbourhood had received the same letters and calls. Given the country information discussed below, it is plausible, and I accept, that in 2008 threat letters were thrown into the applicant’s car and his family received threatening phone calls. I accept these threats were targeted at the applicant and his family to the extent that they were identified as Shia Muslims who reside in a Shia neighbourhood where others received these threats. I am not satisfied that the threats were addressed specifically to the applicant or anyone in his family.”

1. I cannot see, in the circumstances presented, that any claim of legal unreasonableness, or a failure of procedural fairness on the part of the IAA, within the relevant statutory framework, can be made out.

2. The applicant had ample time and opportunity, before he was on remand, to produce the documents that he wanted to provide to support, or corroborate, his claims.

3. While that opportunity was limited by his being on remand, the applicant did have some assistance from RACS, who were able to communicate with him while he was on remand, and to communicate with the IAA on his behalf during that period. Even if the opportunity to communicate was limited, it still, demonstrably, existed.

4. In any event, the documents the applicant has identified as being the subject of his complaint now, were ultimately not relevant to the IAA’s assessment, because the IAA accepted the claim that the documents purportedly would have corroborated.

5. That is, the IAA accepted that his family had been targeted in the past as claimed. The fact that the IAA found that that claim did not lead to the likelihood of serious or significant harm in the reasonably foreseeable future does not reveal unreasonableness in the requisite sense, or a failure of procedural fairness, within the relevant statutory framework.

Conclusion

1. The grounds of the application to the Court are not made out. I cannot otherwise see jurisdictional error in the IAA’s decision. It is appropriate to dismiss the application to the Court. I will make that order.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 14 November 2019