CSQ24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1168
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSQ24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1168
File number: PEG 169 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 November 2024 Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority committed jurisdictional error by illogical reasoning – whether finding new information under 473DC did not satisfy s 473DBB(b)(ii) is illogical – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), (aa), 473CA, 473CB, 473DD(a), 473DD(b)(i)-(ii), 473DD, 473DC, 473DC(1)(a), 473DC(1)(b). Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 4 November 2024 Place: Perth Solicitor for the Applicant: Mr Glenister (William Gerard Legal) Counsel for the First Respondent: Ms Hofmann Solicitor for the First Respondent: Ms Martin (Sparke Helmore) Solicitor for the Second Respondent: Submitting appearances, save as to costs. ORDERS
PEG 169 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSQ24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Immigration Assessment Authority (“the Authority”) on 8 April 2024, which affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (“delegate”) to not grant the applicant a Safe Haven Enterprise (class XE)(subclass 790) visa (“the protection visa”).
BACKGROUND
The applicant is a male citizen of Pakistan. The applicant arrived in Australian in June 2013. On 20 April 2017, the applicant applied for the visa. On 16 January 2018, a delegate decided to refuse the application for the protection visa.
On 19 January 2018, the applicant’s matter was referred to the Authority under s 473CA of the Migration Act 1958 (Cth) (“the Act”). On 24 August 2018, the Authority, at first, affirmed the decision to refuse to grant the applicant the protection visa.
This first decision by the Authority was quashed by the then Federal Circuit Court of Australia after the Department conceded that the first Authority’s review had fallen into jurisdictional error by failing to consider a clearly articulated claim made by the applicant. The matter was remitted back to the Authority for reconsideration of the applicant’s claims for protection.
On 8 April 2024, the Authority again affirmed the decision not to grant the applicant a protection visa.
The applicant has again sought judicial review of the Authority’s decision. For the reasons that follow, the matter must be dismissed.
THE AUTHORITY’S DECISION
The applicant’s claims for protection are summarised at [21] of the decision as follows:
•The applicant is a Pakistani citizen of Pashtun ethnicity and an adherent of the Shia faith. His family are a prominent 'Syed' family. He was born in Karachi, in the Sinhd Province of Pakistan., he lived in Karachi for his entire life before coming to Australia. He was raised and educated in the city and lived there with his family. The applicant completed his education between 1996 and 2012. He has a Bachelor of Commerce.
•The applicant's father was a member of the Pakistani Army, and later a member of the Pakistani police. His father has two wives. The applicant has three older brothers (B1, B2 & B3) who were born to his father's first wife, like him. He has an older half-brother (B4), who was born to his father's second wife. He has a younger, full sister (S1) and a half sister (S2). His family all lived together in the same house.
•The applicant's father is now retired from the Police force. Two of his brothers (B1 & B3) are members of the Police force. The applicant's family owned a Gun Repair business in Karachi. The business would repair firearms belonging to authorised Government agencies (such as the Police) and registered gun owners. The applicant worked in the family shop part time.
•The applicant worked in the family business from 2006. In 2011, the applicant married.
•Sectarian violence broke out in Karachi around 2006 and 2007. The area experienced increased insecurity. Many people would approach the applicant and his brother in the shop, and harass them about their Shia faith.
•Because his family were Syed's, they were prominent members of the local community. Many persons would attend their family home on important religious days.
•In September 2012, the applicant and B4 were working in the family shop. Four to five militants entered the shop and told the applicant and his brother that they should work with them. The applicant refused noting that the men were not licenced or registered gun owners. The men threatened him and his brother, identifying them as Shia infidels. The men accused the applicant of secretly supporting Shia militant groups in Pakistan. They said they would kill the applicant and destroy the business. The applicant was frightened.
•After this incident, the applicant and his brother started to receive threatening phone calls. He believes the calls were from the same group. Sometime later, the applicant's family shop was robbed. All their stock was stolen. They reported the robbery to the Police, but the police would do nothing. The threatening phone calls continue. The applicant was told that "there was no place for Shia" in Karachi and that they should leave. The police could not protect them.
•The applicant and his brother became very afraid. The applicant's father decided they should leave Pakistan. The applicant obtained a genuine Pakistani Passport. He departed Pakistan in May 2013. B4 departed Pakistan for Saudi Arabia several months earlier. While the applicant was travelling to Australia, two men who had worked at the family shop with the applicant, were killed by unknown terrorists in Karachi. The applicant believes these men were killed because they were Shia who had worked in his family shop.
•The applicant fears to return to Pakistan because he believes that he is still under threat from the militants. He believes his father's former employment with the Pakistani Army and the Pakistani Police heightens the risks he would face in Pakistan.
•Though B1 and B3 are themselves serving members of the Pakistani Police, they can do nothing. His brothers as Shia Police officers are unsafe and cannot leave the Police compound where they live and work.
•The applicant's uncle is Dr Riaz Hussain, a prominent Member of the Pakistani Peoples Party (PPP) who was President of what was the Federally Administered Tribal Areas (FATA) in Pakistan. He was targeted and killed by terrorists in Peshawar Pakistan. His family is well known in Pakistan. The applicant's father's family are well known in Pakistan and his father's other siblings all hold "high profile" positions in Government. He fears harm for these reasons in Pakistan.
•The applicant also fears harm in Pakistan due to the ongoing sectarian violence in that country and the presence of extremist groups. There are many anti-Shia extremist groups in Pakistan including the Taliban, the LeJ, Sepah-e-Sehaba. These groups consider the Shia to be infidels and carry out violent attacks on Shia. The applicant's status as a member of a prominent Shia Syed family exacerbates these risks. The family's past and ongoing links to the Pakistani security services and Government also exacerbates the risk that he would be targeted in Pakistan.
•He could not relocate safely to other parts of Pakistan.
•Since 2018, the applicant has become a member of the Australian branch of the Pakistan Tehreek-e-Insaf (PTI), a political party in Pakistan led by former cricketer Imran Khan. Over time, he has become more involved with the PTI in Australia, holding several formal positions with the party. He is presently the Vice President of the Western Australia party branch. He is heavily involved with the party. In Pakistan the PTI has been harassed and targeted by the present Government. He would face harm in Pakistan for his association with the PTI, including for his membership activities and his social media activity supporting the party. His father was warned by the Pakistani police that he would be severely punished for his links to the PTI if he returned to Pakistan.
•Changes in Pakistani law, which has "effectively outlawed vital aspects" of "his faith" and would compel him to, among other things, honour Sunni Caliphs. He says that he cannot accept these infringements on his religious freedom in Pakistan and would have to hide his true beliefs upon return
The Authority set out the material given by the Secretary under s 473CB of the Act.
The Authority considered the materials in turn as well as new material supplied to the Authority by the applicant. Relevantly for this decision, given the sole Ground of Judicial Review, the Authority considered the applicant’s claim regarding his embrace of the Australian lifestyle and provided at [20] the following reasons:
The applicant also claims that during his time in this country, he has “fully embraced the Australian way of life” while in this country, and his beliefs, values, behaviour, appearance, clothing, and even the way he talks have undergone changes since he came to this country. He says that these aspects of his profile would attract adverse attention in Pakistan. The applicant has not made any claim like this in the past and so this claim is new information for the purposes of s.473DD of the Act. In my view, the applicant’s claims about this issue has been expressed vaguely and he has not provided any further details about when he fully embraced the Australian lifestyle or what changes in his beliefs, values, behaviour, appearance and clothing have actually occurred. Given these factors, I am not satisfied that s.473DD(b)(i) is met for this new claim. On its face, this new claim is credible personal information in the relevant sense. However, in the absence of any further details about changes in his beliefs, values, behaviour, appearance and clothing, or details regarding his embrace of an Australian lifestyle, I am not satisfied that the applicant’s new claim may have affected the consideration of his claims and so s.473DD(b)(ii) is not met. As neither limb of s.473DD(b) is met, I must not consider this claim. For the sake of completeness, I note that the applicant has not pointed to any exceptional circumstances which might justify considering this new claim and none are apparent to me. As there are no exceptional circumstances to justify considering this claim s.473DD(a) is also not met. As none of the limbs of s.473DD are met, I have not considered this claim.
Ultimately the Authority found that the applicant did not meet the definition of refugee set out in s 5H(1) and accordingly did not meet s 36(2)(a) and the complementary protection grounds in s 36(2)(aa).
GROUNDS OF JUDICIAL REVIEW
The applicant relies on a sole ground of judicial review contained in an Originating Application filed on 12 May 2024, as follows:
1.The Second Respondent (Authority) made a jurisdictional error by illogically reasoning at [20] that new information provided by the Applicant was both ‘credible personal information’ and not capable of affecting the consideration of his claims for the purposes of s 473DBB(ii) of the Migration Act 1958 (Cth)
THE APPLICANT’S SUBMISSIONS
The applicant relied upon the definition of new information set out in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217, at [24] being, ‘“information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)’.
Section 473DC(1)(b) provides that for information to be new information, the Authority must consider that information to be “relevant” to the review such that the information is capable of affecting its assessment of the existence of a fact in which it is required to make a finding on in its decision. It follows then, as submitted by the applicant that the Authority must have accepted the applicant’s claim about his behaviour.
The Authority found that the applicant’s behaviour claim was credible personal information as it could be believed. However the Authority did not consider that it was information which would have affected the consideration of the referred applicant’s claims due to it being vague. The applicant argues that this conclusion of the applicant’s claims was irrational, illogical, cannot be considered to be supported by logical grounds and can be characterised as unjust, arbitrary or capricious for two reasons. Firstly, as the Authority considered that the claim was relevant and credible it was not open for it to conclude that it could not have affected the consideration of the applicants claim. Secondly, the conclusion that the behaviour claim was vague was not relevant to whether it may have affected the consideration of the applicant’s claim.
An assessment of whether the claim would affect the Authority’s consideration of the claims should have been completed from the point of whether the claim was believed. The issue of vagueness could have only been relevant to assessing whether the claim ought to have been believed.
The applicant submits that if the Authority’s conclusion that the applicant’s behaviour claim did not satisfy s 473DD(b)(ii) is vitiated, then it follows that its conclusion on s 473DD(a) will be vitiated too, as lawfully, criterion in s 473DD(b) are required to be considered before the criterion in s 473DD(a).
As such, the Authority’s refusal to consider the behaviour claim was material as this claim went to the Applicant’s profile as a prominent or distinctive Shi’a Muslim who is more likely to attract attention and sectarian violence. If the claim was considered and accepted by the Authority, there was a realistic possibility that a different outcome would be achieved on the review.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that the standards of relevance in ss 473DC and 473DD have different thresholds. New information that meets the relevance requirements in s 473DD(b)(ii) can meet the relevance requirements in s 473DC(1)(b) however the same cannot exist in a reverse scenario.
It was open for the Authority to be satisfied with the relevance requirement in s 473DC for the purposes of getting new information and simultaneously not be satisfied with the requirement in s 473DD for the purposes of considering the new information. Also, it was open for the Authority to find that due to an absence of further details, the relevance requirement in s 473DD(b(ii) was not met. As there was a lack of details in the new information put forward this was relevant for the capacity of the new information to affect the consideration of the applicant’s claims.
The first respondent submits that in the absence of further details, it was open to the Authority to make its finding, and it was reached logically or rationally on the available material.
In the event that the Court finds that there was an error in the Authority’s application of s 473D(b)(ii), the first respondent maintains that the error was not material. Firstly, because there were no exceptional circumstances which would justify considering the new information and the consideration of the new information alone could not have changed the outcome of the Authority’s application of the criterion in s 473DD(a). Secondly, if there was at all a failure by the Authority to take into account the new information, it was not material because it would not have resulted in a different outcome in the substantive review. The Authority had rejected the applicant’s claim of being a ‘Pashtun Syed Shia from Karachi’ and ‘Failed asylum seeker, western country, weapon repairer’ claim.
CONSIDERATION
This matter revolves around a specific argument as to the Authority’s decision at [20] of the decision record. Sections 473DC and 473DD read as follows:
Section 473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Section 473DC provides that the Authority may obtain new information that was not before the Minister and that the Authority considers may be relevant. In this case it was the applicant who made the new claim that he had embraced Australia’s way of life and he would be at risk of harm on return as a result. The Court is satisfied this was new information. The Court is also satisfied this new claim was information that was relevant to the review.
As the Authority correctly identified this claim was new information provided by the applicant, it proceeded to assess whether the information should be considered as required under s 473DD.
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [2] requires the Authority to undertake a two-step process in considering whether the information should be considered. This requires first, a consideration of s 473DD(b)(i) and (ii). Only if either of those preconditions is met, will the Authority then consider pursuant to s 473DD(a) whether exceptional circumstances exist in order for the new information to be considered. Even if the preconditions in s 473DD(b)(i) or (ii) are met, the Authority may still determine that exceptional circumstances do not exist under s 473DD(a) such that the information should be considered. Section 473DD(b) should inform the Authority in relation to exceptional circumstances. As pointed out by the respondent, exceptional circumstances cannot be exhaustively defined other than to be one that cannot be regularly or routinely found: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [30].
The Court does not accept the submission of the applicant that the same test for relevance applies for s 473DC and s 473DD. Each section fulfills a different purpose and has different work to do. The relevance test in s 473DD(b)(ii) relates to material provided by the applicant only and does not generally include material obtained by the Authority. Thus what may be relevant under s 473DD(b)(ii) will meet the test in s 473DC(1)(b) the reverse is not true.
In the current matter, the Authority looked at the claim made by the applicant that he had “fully embrace the Australian way of life” and this would attract adverse attention in Pakistan. The Authority found that the claim in relation to this issue was expressed vaguely and “he had not provided any further details about when he fully embraced the Australian lifestyle or what changes in his beliefs, values, behaviour, appearance and clothing have actually occurred”. Thus, the Authority was not satisfied that s 473DD(b)(i) was met, implicitly finding that the information was not and could not have been provided to the Minister before the Minister made the decision under s 65.
The Authority then made a tentative finding that the new claim was credible personal information on its face, but was not satisfied that this new claim may have affected the consideration of the applicant’s claims. It thus determined that s 473DD(b)(ii) was not met.
Having come to this determination, in the Court’s view the Authority properly determined not to consider the information in its review. The Court considers the ultimate decision not to consider the information to be one that was open to the Authority, on the evidence that was before it and for the reasons it gave.
As pointed out by the respondent, there was information already before the Authority that indicated that the returnees from Western countries do not face significant risk of societal violence or discrimination simply as a result of time spent in a Western country [76].
The Court does not accept the applicant’s claim that there was anything unlawful in the manner in which the Authority went about its task in considering this new information. Even if the Court is wrong in this regard, given the comprehensive findings of the Authority at [75] - [81] that the applicant did not face any risk as a failed asylum seeker, a returnee from a Western country or indeed a person who would engage in the trade of a licensed weapon repairer upon return, the Court does not consider the error material in that it would realistically have resulted in a different outcome of the substantive review. These findings were open to the Authority on the evidence before it and for the reasons it gave.
The sole ground of judicial review has no merit.
DETERMINATION
The application must be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 November 2024
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