CUH17 v Minister for Immigration
[2018] FCCA 1337
•24 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1337 |
| Catchwords: CITZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (subclass 790) visa – whether Authority considered all material forwarded by Secretary – whether Authority considered all integers of applicant’s claim. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B), 473CB, 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 SZSRY v Minister for Immigration & Anor [2013] FCCA 1284 |
| Applicant: | CUH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 589 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 18 May 2018 |
| Date of Last Submission: | 18 May 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 24 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms Forder |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 12 December, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 589 of 2017
| CUH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on 14 December, 2012. He arrived by boat and for the purposes of the Migration Act 1958 is an unauthorised maritime arrival.
On 12 April, 2016 and at the invitation of the first respondent he lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa.
In his visa application and the documents that supported it, he claimed that he was a Sunni Muslim of Pashtun ethnicity. He claimed to have left Pakistan after his brother was killed because there was not any security but he did not know why his brother had been killed. He also claimed that he and his brother looked like Hazaras and attended Muas College in a Hazara town in Quetta. He said that he and his family had been asked if they had converted to Shia Islam. He said that his brother and he were badly beaten by people who looked like Sunnis who were screaming “kill Hazara”. He said that two weeks after that incident his brother was killed in what he described as a “targeted killing”.
The applicant claimed to fear that if he returned to Pakistan he would be shot or killed as a target of “Sectarian Issues” because of his resemblance to a Hazara or as a target for a “Shia Sunni incident”. The applicant also claimed that he and his brother worked as cleaners for a local Hazara political leader.
On 11 November, 2016, a delegate of the first respondent refused to grant the applicant the visa for which he had applied. It did not consider that the applicant met the criteria for protection pursuant to s.36(2)(a) of the Act or for complementary protection pursuant to s.36(2)(aa) of the Act.
The first respondent’s delegate’s decision was a fast track reviewable decision. Consequently, on 17 November, 2016 the decision was referred to the second respondent for review pursuant to Part 7AA of the Act.
For the purposes of that review, on 9 December, 2016 the applicant’s representative provided a written submission to the second respondent which attached a death certificate in respect of the applicant’s brother, a police report of the brother’s death and a statutory declaration by the applicant sworn on 8 December, 2016. In that statutory declaration, the applicant further claimed that he and his brother attended protests in Quetta against the killing of Hazaras and attended Shia imambargahs.
For the purposes of its review, the second respondent received material referred to it by the Secretary of the first respondent’s department pursuant to s.473CB of the Act. The second respondent’s reasons for decision reflect that the second respondent considered that material.
On 9 December, 2016 the applicant’s representative provided written submissions, a statutory declaration made by the applicant on 8 December, 2016, a translation of a police report about the death of the applicant’s brother and a death certificate relating to the applicant’s brother. The second respondent correctly observed that the submission comprised legal argument and addressed the delegate’s findings. It was not new information for the purposes of the Act and the second respondent was able to give it consideration. However, the written submission also referred to country information that was not considered by the delegate and which was considered to be new information for the purposes of the Act. The reports all predated the delegate’s decision and they did not, according to the second respondent contain credible personal information that was not previously known to the applicant or the first respondent. The information concerned terrorist and militant attacks in Pakistan, some specifically relating to attacks on Hazaras in Quetta. The second respondent was not satisfied that there were exceptional circumstances to justify considering those reports and it did not consider that s.473DD was met. That information was not considered.
The second respondent considered the death certificate to be new information. However the second respondent was not satisfied that there were exceptional circumstances to justify consideration of that information either. So too, the translation of the police report.
The applicant’s statutory declaration contained additional detail about his claims and the information that was provided to the delegate. The second respondent records in its reasons that to the extent that the statutory declaration expanded on and clarified the claims made before the delegate considered that material. However, it also included new information, namely:
a)information that the applicant and his brother attended protests in Quetta against the killing of Hazaras;
b)information that he attended Shia imambargahs about 20 times after the protests and with his Hazara colleagues whenever Shias were killed; and
c)photographs of the applicant and his three brothers, which the applicant was requested to provide at the visa application interview. The applicant said to the second respondent that he forgot to do so because he was nervous and exhausted afterwards, and because the request for photographs was not included in the formal request for information letter that the delegate sent him after the interview.
However, none of that information was considered by the second respondent because it was considered to be new information and the requirements of s.473DD were not met in respect of any of it.
From the outset, the second respondent expressed concern with the applicant’s credibility. In [11]-[14] of the second respondent’s reasons the second respondent details the difficulties that it had with the applicant’s evidence. It highlights some inconsistencies and other difficulties that the second respondent had with the applicant’s evidence. Indeed, the second respondent concluded that the applicant’s “late claims” concerning the reasons for the killing of his brother, that the applicant and his brother had previously experienced violence and harassment because they were considered to be Hazara and that one of the reasons they were assumed to be Hazara was because they had worked for a Hazara leader, were fabrications intended to strengthen the applicant’s case.
As to the new information provided to the second respondent about the applicant’s claimed Hazara connections – that he attended protests against the killing of Hazaras and attended Imambargahs on about 20 occasions in connection with the deaths of Hazaras, the second respondent was not satisfied that that information could not have been provided to the delegate before the delegate made his decision. Whilst the applicant provided an explanation for his failure to provide that information to the delegate, the second respondent did not accept those explanations. In [17] of the second respondent’s reasons, the second respondent explains why it did not consider there were exceptional circumstances which justified considering that new information.
The second respondent found as implausible the applicant’s claims that despite being Pashtun, Sunni, attending a Sunni mosque and having male relatives who do not look Hazara, that people in their neighbourhood would assume that the applicant and his brother were Hazara because of their appearance and their attendance at a Hazara college which had students, the majority of which were Hazara but which also included students from other tribunal and ethnic backgrounds. The second respondent accepted that the applicant and his brother attended a college that was attended mostly by Hazara students. It accepted that the applicant and his brother had Hazara friends and may have been asked if they were Hazara. However it was not satisfied that carried with it any implied threat of harm. The second respondent did not accept that the applicant and his brother were beaten because they were considered to be Hazaras or Hazara Shias or because they were regarded as associated with or sympathetic to Hazara Shias.
The second respondent did accept that the applicant’s brother had been murdered and that it may have been in a “targeted killing”. It did not accept, however, that that was because his murderers believed he was Hazara or Shia or for any reasons relating to being identified or associated with being Hazara. The second respondent did not consider there was any basis in the evidence before it to conclude that the murder of the applicant’s brother reflected a risk of harm to the applicant.
Accordingly, the second respondent did not accept that the applicant faced a real chance of being killed or seriously harmed because he was imputed to be an Hazara or a Shia or because he was imputed to be associated with or supportive of Hazara or Shias. It did not consider he was at a real risk or chance of being killed or seriously harmed because he was regarded as a heretic. The second respondent was not satisfied that the requirements of s.36(2)(a) of the Act had been met.
In respect of the applicant’s claims to complementary protection, the second respondent relied on its anterior findings that the applicant would not face a real chance of serious harm and found that the applicant would not face a real risk of significant harm on the basis of the claims he advanced. The second respondent considered evidence which demonstrated that there was generalised or criminal violence in the relevant region of Pakistan but found that any risk of significant harm as a result of such violence would arise from the applicant being either a random victim of crime or harmed because he was in the wrong place at the wrong time such that there was not a real risk of harm. Further, the second respondent said (footnotes omitted):
26. There is no doubt, based on the country information, that Hazara Shias are targeted by militant extremist Sunni groups for reason of their ethnicity and religion, and are at risk of harm in Quetta. Some of the militant groups which target them consider that they are heretics. I accept that if an individual was, or was imputed to be a Hazara Shia, they could be subjected to serious harm for all of the reasons identified in the representative’s submission and in the applicant’s December 2016 statutory declaration at [38]. However, the applicant and his brother are not Hazaras or Shias. I accept that they attended a predominantly Shia college. I am prepared to accept that they may have been queried about being Hazara because of this, but I do not accept that they were beaten and I do not accept that the applicant was subjected to serious harm, as defined, because he was perceived to be a Hazara and/or a Shia. I do not accept that the applicant and his brother worked in a business owned by a former Hazara leader.
…
28. The delegate referred to country information indicating that there is a high level of criminal violence in Quetta, and while there is some possibility that the applicant may be the victim of crime in the future, I am not satisfied that the chance of this occurring rises to the necessary level of a real, as opposed to a remote or insubstantial chance. Even if the applicant were to be the victim of a criminal incident in the future, I am not satisfied that this would be for any of the reasons in s.5J(1)(a).
…
33. DFAT assesses that there is a moderate level of generalised violence in Balochistan, and other country information considered by the delegate indicates that there is a high level of criminal activity there. I have considered whether the applicant faces a real risk of harm as a result of generalised or criminal violence. Because I am satisfied that the applicant has no particular profile that would elevate the risk of harm he faces, I consider that any risk of significant harm as a result of generalised or criminal violence would arise from him either being a random victim of crime, or harmed because he was in the wrong place at the wrong time. I am not satisfied that the risk of harm faced by the applicant rises to the necessary level of a real, as opposed to a remote or insubstantial risk; however, in any event, s.36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if the real risk is one faced by the population of the country generally and is not faced by the person personally. Given the random nature of any risk of harm posed to the applicant as a result of generalised or criminal violence in Quetta or Balochistan, I am satisfied that there is taken not to be a real risk of such harm, as the risk of such violence is one faced by the population generally and not by the applicant personally.
The second respondent concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Pakistan, there was a real risk that the applicant would suffer significant harm. The second respondent thought that the applicant did not meet s.36(2)(aa) of the Act. Consequently, the delegate’s decision was affirmed.
In his amended application filed on 12 December, 2017 the applicant specifies three grounds of review. I will deal with each in turn.
Ground One
That ground is in the following terms:
1. The Second Respondent (Authority) failed to consider a claim raised by the Applicant.
Particulars
(a) In the Applicant’s statutory declaration dated 8 December 2016 and provided to the Authority on 9 December 2016, he stated that he feared persecution, inter alia, because of his actual political opinion as a ‘Hazara sympathiser / supporter’.
(b) The Authority’s decision was solely expressed in terms of whether the Applicant would face harm as a perceived Hazara sympathiser or supporter, rather than as a result of the expression of his actual views.
(c) The Authority failed to consider whether the Applicant would express his actual political opinion as a ‘Hazara sympathiser / supporter’ if removed to Pakistan and, if not, whether he would refrain from doing so because of a fear of persecution or significant harm.
As the first respondent accurately submits, the applicant’s claims raised on the material before the delegate related solely to an ethnicity or views said to be imputed to him. The applicant did not claim to hold any actual political opinion sympathetic to Hazara or Shia Hazaras. His evidence at his entry interview was that he had never been associated or involved with any political group or organisation and he had not been involved in any activity or protest against the government. In his written application for the visa, he said that his fear was “just due to [his] resemblance” to a Hazara.
I accept the first respondent’s submission that the applicant’s claim to fear persecution because of an actual political opinion as a Hazara sympathiser or supporter was not squarely or sufficiently raised on the material before the delegate for the first respondent or the second respondent to consider it.
To the extent that the applicant claimed to have attended protests against the killing of Hazaras and attended Shia imambargahs as set out in his statutory declaration dated 8 December, 2016 that material was properly not before the second respondent and not considered by it because it did not meet, according to the second respondent, the requirements of s.473DD of the Act. The second respondent not only did not consider it, but could not consider it.
I accept the first respondent’s submissions that there was no basis in the material before the second respondent for it to have considered a claim by the applicant that was based upon an actual political opinion held by him that was sympathetic to Hazaras or Hazara Shias. I accept the first respondent’s submission that there was no jurisdictional error in the second respondent’s failure to address that claim.
Ground Two
This ground is in the following terms:
The Authority failed to have regard to a relevant consideration, being the evidence put by the Applicant as to conditions in Pakistan.
Particulars
(a) In submissions provided to the Authority on 9 December 2016 the Applicant’s adviser referred to country information regarding the security situation in Pakistan and, in particular, in the Applicant’s home city of Quetta.
(b) In its decision the Authority found that this country information ‘was not considered by the delegate and is new information’.
(c) Several of the sources cited in the Applicant’s adviser’s submissions had been cited by the Delegate in his decision:
(i) “PIPS 2015 Pakistan Security Report”, referred to at footnotes 11, 13 and 14 of the Delegate’s decision;
(ii) “Terrorised Shiite Hazaras to form private force in Pakistan”, referred to at footnote 5 of the Delegate’s decision;
(iii) “Stabilizing Pakistan through Police Reform”, referred to at footnote 16 of the Delegate’s decision;
(iv) “’Hell on Earth’: Inside Quetta’s Hazara community”, referred to at footnote 6 of the Delegate’s decision;
(v) “Policing Urban Violence in Pakistan”, referred to at footnote 12 of the Delegate’s decision.
(d) This country information was not ‘new information’ and should not have been excluded by the Authority under s 473DD of the Migration Act (Cth).
(e) This country information was relevant to the Authority’s assessment of whether the Applicant would face a real chance of persecution or a real risk of significant harm if removed to Pakistan.
(f) The Authority’s failure to consider this evidence amounted to a failure to have regard to relevant considerations.
This ground asserts that the second respondent did not take into account certain country information that had been included by the applicant’s representative in his submissions to the second respondent on 9 December, 2016. Five particular pieces of information are identified in the particulars to this ground.
This ground, however, cannot succeed for the following reasons:
a)The second respondent expressly stated that it “had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958”. The information identified by the applicant in the particulars to ground two was information that was within the material referred by the Secretary to the second respondent.
b)When it considered the submission and attachments provided by the applicant’s representative on 9 December, 2016 the second respondent found that to the extent that the submission comprised legal argument and addressed the delegate’s findings it was not new information and the second respondent had regard to it. Further, the second respondent acknowledged that the submission also referred to “other country information” which the second respondent described as “mostly media reports, that was not considered by the delegate and is new information”. The second respondent noted that the reports all predated the delegate’s decision.
c)The second respondent referred to the excluded media articles by saying “they are similar in content to other information that was considered by the delegate”. I accept the first respondent’s submission that the second respondent’s reference thereby reinforced the fact that the second respondent had taken into account the country information actually considered by the delegate.
d)The second respondent expressly referred to some of the country information that the applicant particularises in his second ground of review as having not been considered by the second respondent. It did so in [22], [28] and [33] of its reasons. To the extent that the second respondent did not expressly refer to some of the information particularised by the applicant in his second ground of review, the second respondent was not obliged to do so: Minister for Immigration and Citizenship v Kajdi (2010) 190 FCR 248 at [78], [79] and [123]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]; NHAI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14].
I accept the first respondent’s submissions that this ground of review does not reveal jurisdictional error in the second respondent’s decision.
Ground Three
This ground is in the following terms:
3. The Authority failed to apply the correct test as to whether the Applicant would face a real risk of significant harm pursuant to s 36(2B)(c) of the Migration Act (Cth).
Particulars
(a) The Authority found that any risk of harm faced by the Applicant as a result of generalised or criminal violence in Quetta or Balochistan would be a risk ‘faced by the population generally and not by the applicant personally’.
(b) The Authority’s interpretation of s 36(2B)(c) was inconsistent with authority: SRSRY v MIBP [2013] FCCA 1284.
(c) This risk of significant harm feared by the Applicant and considered by the Authority was confined to a particular city and/or province within Pakistan. This risk was not excluded from constituting a ‘real risk’ by s 36(2B)(c).
I have set out paragraph 33 of the second respondent’s reasons above. It is apparent from those reasons that the second respondent found that the information before it revealed that there was a moderate level of generalised violence in Balochistan and other country information considered by the delegate indicated that there was a high level of criminal activity there. However, the second respondent found that because the applicant had no particular profile that would elevate the risk of harm he faces, it considered that any risk of significant harm as a result of generalised or criminal violence would arise from him being either a random victim of crime or harmed because he was in the wrong place at the wrong time. The second respondent was not satisfied therefore that the risk of harm faced by the applicant rose to the necessary level of a real, as opposed to a remote or insubstantial, risk. That was the principal finding made by the second respondent in [33] of its reasons.
The second respondent then went on to consider an alternative position namely that the applicant was at a risk of harm that did rise to the necessary level of a real risk and concluded that s.36(2B) of the Act required it to disregard that risk because it was one faced by the population of the country generally and was not faced by the applicant personally. The second respondent concluded that given the random nature of any risk of harm posed to the applicant as a result of generalised or criminal violence in Quetta or Balochistan, that risk of violence was one faced by the population generally and not by the applicant personally.
As the first respondent’s submissions identify, there were two alternative bases upon which the second respondent concluded that the applicant did not face a real risk of significant harm for the purposes of his claim to complementary protection.
In the particulars to this ground, the applicant refers to SZSRY v Minister for Immigration & Anor [2013] FCCA 1284.
The first respondent’s submissions seek to distinguish SZSRY from the present case. As those submissions point out, SZSRY concerned a situation in which the independent protection assessor had confined its consideration of the complementary protection ground to the risk of harm as a result of certain claimed past events in Afghanistan. Because the assessor did not accept that those past events actually occurred, the assessor found the claimant did not meet the criteria in respect of s.36(2)(aa) or consider s.36(2B) in that respect. The Federal Circuit Court found that such a conclusion was open to the assessor. The jurisdictional error, however, was said to be that the assessor’s failure to consider another aspect of the applicant’s claims squarely and repeatedly raised, being the risk of harm as a result of the generally violent situation in the Ghazni providence (regardless of claimed past events). It was quite clear that the assessor in SZSRY had not considered whether that claim gave rise to a real risk at all, let alone a real risk which s.36(2B)(c) did not disqualify. I accept the first respondent’s summary of the decision in SZSRY as accurate.
The present case is, I accept, different to SZSRY because the second respondent here considered the applicant’s claim to fear harm as a result of generalised or criminal violence. It considered that claim but found the risk of harm did not rise to the level of a real risk as opposed to a remote and insubstantial one. Section 36(2B)(c) was not engaged and was only dealt with by the second respondent in the alternative.
In any event, the applicant’s argument as expressed in ground three is misconceived. In BBK15 v Minister for Immigration & Border Protection [2016] FCA 680, Buchannan J observed:
30. In my view, s 36(2B)(c) draws attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared with the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense (see also SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]). A risk shared with the general population is taken not to be a “real risk of harm” for the purpose of s 36(2)(aa).
…
32. I also reject the appellant’s contention that s 36(2B)(c) only applies if a risk is faced by all members of the population of a country. In my view, the Tribunal was correct to understand that a reference to “the population of the country generally” is a reference to the commonly understood concept of the general population – i.e. there need not be a risk faced by all members of the population or by each citizen of a country for s 36(2B)(c) to apply.
In my view, ground three reveals no jurisdictional error.
Conclusion
The grounds of review relied upon by the applicant do not demonstrate any jurisdictional error. The amended application filed on 12 December, 2017 must be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 May, 2018.
Date: 24 May, 2018
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