DAB16 v Minister for Immigration - [2018] FCCA 3957

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAB16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3957

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 5J(5)(d)

Applicant:

DAB16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT ATHORITY

File Number:

PEG 486 of 2016

Judgment of:

Judge Vasta

Hearing date:

28 November 2018

Date of Last Submission:

28 November 2018

Delivered at:

Perth

Delivered on:

28 November 2018

REPRESENTATION

Solicitor for the Applicant:

Ms H. Smart

Counsel for the First Respondent:	Ms S. Oliver
Solicitors for the First Respondent:	Australian Government Solicitor

ORDERS

That that the Applications filed 13 October 2016 and 27 September 2018 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 486 of 2016

DAB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 20 September 2016, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant DAB16 a protection visa.
The circumstances leading to that in short compass are these. The Applicant claims that he is a Hazara Shia from Balochistan in the Quetta district of Pakistan. He claimed that anti-Shia militias target Hazaras for harm in his hometown, and he knows of many Hazaras who were killed in his hometown. He said that he worked at a clothing store at a market, and that he and his employer received threatening letters.
At different times, he has said that there were many letters left outside the shop at night, and there were two to three letters addressed to him and his employer. He has said that these letters were from the LEJ, or the Sepah Wahabi. Most of the storeowners in the market were Hazara, and many people stopped working at the market.
He has also made claims about his fiancée. He said that his fiancée received threats in 2011 and was called an infidel because she worked for the United Nations providing therapy to disabled people.
He claimed that four of her colleagues were abducted by anti-Shia militias and killed. At another time, he said that his fiancée worked for the Red Cross or an NGO, but he could not remember whether it was for the Red Cross or for the UN. At other times, he said that the four colleagues that were abducted were English, and that they were beheaded, and that this happened two weeks after his fiancée left her job after she was threatened in person by members of LEJ at the hospital where she works. He claimed that she now works for a doctor’s clinic.
He said that in November 2011 the shop owner that he worked at, sold the business and went to Canada. The Applicant said that after that happened, he stayed at home because it was too dangerous for him to go outside because he is Hazara. He said that it was not safe for him to travel on the street, so he could not find work. He said he had no option but to leave Pakistan.
Again, he has given a number of versions about his leaving. He has said in February 2012, he left Pakistan. At other times he said he departed Pakistan in July 2012. Other times he said he left Pakistan three times; twice being deported back to that country from Thailand, first time in early April, the second time in mid-May 2012. Other times he said that he has left his hometown in February to go to Karachi, and he stayed in Karachi for three months. On another occasion he said that he went to Iran for six months at the beginning of 2012, and at other times he said he was in Karachi and Lahore for the first six months of 2012.
He claims that Pakistani authorities will arrest him at the airport if he returns to Pakistan because he left Pakistan and applied for asylum, and also that he made claims against LEJ. He says that LEJ has influence and control over the government. He said that the Pakistan Government is unwilling or unable to protect him from anti-Shia militia. He said that the majority of the government are Punjabi, the same as the Punjabi Taliban, and nowhere in Pakistan is safe for him to live.
He fears that if he returns to Pakistan, he will be targeted for harm by LEJ, Sepah Wahabi, Punjabi Taliban and/or other Sunni or anti-Shia militia, and/or the Pakistan authorities because:
a)he is Hazara,
b)he is Shia,
c)his fiancée worked for an NGO,
d)he applied for asylum and lived for an extended period of time in Australia.
The IAA assessed these claims. Without wanting to go into too great a detail, the story that the Applicant gave was so full of holes that the IAA did not consider that he was a witness who was credible.
Because of that, the IAA did not put any real store on his claims that he would be targeted because of his fiancée or any other reason connected to that claim. What the IAA was left with was the fact that the Applicant is a Shia Hazara, and, just on that fact alone, whether or not he had a well-founded fear of persecution if he were to return to Pakistan.
The IAA relied on the latest DFAT reports. At paragraph 22, the IAA said that “the vast majority of Hazaras are Shia and that Hazaras are physically distinguishable due to their facial features.”
The latest DFAT report states that there are about 900,000 Hazaras in Pakistan, 700,000 whom reside in the Applicant’s hometown and surrounding areas of Balochistan province, and that there are also large Hazara communities in the other main cities of Pakistan, including Lahore. The IAA said that the most recent DFAT reports and all of the country information and the review material indicate that LEJ and other such groups target Shias in the Applicant’s home province and, in particular, the Applicant’s hometown.
The sort of harm that is perpetrated include mass and targeted killings, abductions and assault. DFAT assessed that there is a moderate but declining risk of targeted harm by militant groups against Hazara Shias in Balochistan. That caused the IAA to come to a conclusion that they were satisfied that if the Applicant were to return to his hometown in Balochistan, he would face more than a remote chance, and, therefore, would face a real chance of serious harm for the reasons of his race as a Hazara and his religion as a Shia. The IAA was satisfied that the harm he would face included deprivation of liberty, serious physical assault and/or loss of life. The IAA was satisfied that those groups would inflict that harm against the Applicant in a systemic and discriminatory way.
The question then was whether the Applicant had that real chance of serious harm because of his well-founded fear of persecution throughout all areas of Pakistan and, in particular, Lahore in the Punjab province. From paragraphs 27 to 31, the IAA discussed relocation. The IAA said this, at paragraph 29:
According to the most recent DFAT thematic report, Sunnis and Shias are generally more integrated in Lahore and that the level of generalised and sectarian violence is lower in Punjab than other parts of Pakistan. No Shia deaths from sectarian violence were reported in Lahore during 2015. The latest DFAT reports state too under the Pakistan constitution, Pakistani citizens are free to live anywhere in the country.
On that basis, the IAA was satisfied that the Applicant could travel to and reside in Lahore. Therefore, the IAA was not satisfied that the Applicant had a well-founded fear of persecution from those groups, or from Pakistan authorities now, or in the reasonably foreseeable future, if he relocated to live in Lahore. Therefore, he did not meet the requirements of the definition of refugee.
The IAA then looked at the complementary protection criteria.
On the same basis, the question that the IAA had to ask themselves was whether the Applicant could reasonably relocate to an area of the country where there would not be a real risk that he would suffer significant harm.
The IAA, again, looked at the question of living in Lahore and said that they had already concluded that they were not satisfied the Applicant faces a real risk of significant harm in Lahore, but then turned their mind as to whether it would be reasonable for him to relocate there.
At paragraphs 41 and 42, the IAA discussed the reasonableness of this relocation. They then came to the conclusion that it was reasonable for the Applicant to relocate to Lahore, therefore, he did not meet the criteria for the complementary protection.
The Applicant filed a review application in this Court on 13 October 2016. On 27 September 2018, he filed an amended originating application. The two grounds for review were these:
(1) Failing to assess the Applicant’s claim as required by law and the rules of procedural fairness; and
(2) Relying on incorrect information including DFAT reports, which undermined and prejudiced the Applicant’s claim.
In the written submissions, the grounds had changed somewhat. Ground one was now described as “illogical and irrational conclusion not taking into account the relevant considerations and taking into account the irrelevant considerations”.
During the course of the hearing, I explained to counsel for the Applicant that these two grounds were not the same, especially where the Applicant was claiming that there had been a breach of procedural fairness. There had been no identification of what sections of the Migration Act 1958 (“The Act”) had been breached by the IAA.
It was then that the Applicant’s counsel agreed that the true ground in ground one was that the conclusion reached by the IAA was simply not open on the evidence. During the argument that ensued, the Applicant conceded that the IAA were correct in their assessment of the well-founded fear of persecution if the Applicant were to return to his home city. What was argued by the Applicant was that using the same assessment in relation to Lahore, the conclusion should have been exactly the same.
It was argued that the delegate accepted that the Applicant’s claim was that he would be unable to live in any other part of Pakistan, such as Islamabad or Lahore, because of his facial features; that is, anyone would know that he is Hazara Shia, and he would be in danger.
The Applicant claims that insufficient weight was put on that factor, and, in effect, the IAA ignored it. The argument was that, in these circumstances, if the terrorists from the same organisations kill Hazaras in Quetta and Balochistan, why would they not kill Hazaras in Lahore where it is easy to target a poor segregated and highly distinguishable Hazara man.
It was argued as well that there was insufficient weight given, or the IAA did not take into account, that the Applicant said that there were some Hazaras in Karachi, but there were none in Lahore, and that in the way in which the IAA spoke of the relocation, they did not keep taking into account the fact that the applicant is a Shia Hazara, therefore, they have not considered the s.36(2)(a) or s.5J(5)(d) of the Act.
When one looks at the paragraphs I have already highlighted, that is, paragraphs 27 to 31, it is true that the IAA has not referred in those paragraphs to the ethnicity of the Applicant. However, those paragraphs cannot be taken out of context. The only reason those paragraphs are there is because the IAA has already considered the fact of the ethnicity of the Applicant as a Shia Hazara and now must have a look at the impact of that ethnicity on the Applicant going to Lahore. It is clear when one looks at the manner in which the reasons have been written that the Applicant’s ethnicity was front and centre in the consideration of the relocation.
The arguments that the Applicant makes really are an attempt at merits review. The question of weight and consideration are matters for the IAA. The IAA has considered the matters and come to the conclusion that they have. Unfortunately for the Applicant, the conclusion is a conclusion that he does not like, but that does not mean that there has been insufficient weight given, or that the conclusion was not open.
I should also talk of paragraph 41 and 42 because that was where the IAA did make the considerations as to the reasonableness. Because of the fact that it went to the reasonableness, I ought to quote paragraphs 41 and 42 as a whole,
41. I accept the applicant will face some difficulty relocating to Lahore as he must find suitable employment and accommodation. As noted above the evidence before me is the applicant is engaged and his fiancée is working at a doctor clinic in their hometown. I consider it reasonable that the applicant would desire his fiancée to relocate to Lahore with him so they may continue their relationship. I note his fiancée must have some qualifications to work at a doctor clinic. I note, too, the applicant and his fiancée are still both relatively young and they have no children. I note as well the applicant has a primary school level of education, but that he has many years of experience selling clothes. While I note Punjabi is the main language of Lahore, and the applicant declared as well as Hazaragi, he speaks Urdu, the national language of Pakistan, so he will still be able to communicate in Lahore to find work and accommodation. I note as well the applicant has shown himself to have the wherewithal to adapt to life in Australia. Finally, I note the applicant told the delegate he had spent some, albeit it limited time, in Lahore while attempting to depart Pakistan in 2012.
42. I am mindful of the country information discussed above regarding the general security situation in Lahore and the applicant’s acknowledgement at the TPV interview that Lahore is generally safe, because it is the home city of the Prime Minister of Pakistan. I accept the applicant will be identifiable as a Hazara Shia because of his physical features, but the country information quoted above that there is a population of Hazaras in Lahore does not support his claim that no Hazaras live in that city. Having regard to that country information and the personal circumstances of the applicant and his fiancée, I am satisfied it is reasonable for the applicant to relocate to Lahore for the purpose of s.36(2B).
Again, to iterate what I had said about the matter, the claims made by the Applicant really go to the weight given by the IAA. The weight that the IAA gives to these matters is a matter for them. The fact is that these conclusions were open on the evidence. Because they were open on the evidence, there is no jurisdictional error. There is no merit then in ground one.
Ground two really proceeds on the basis that the information in the DFAT reports was incorrect. The main part of the DFAT reports that were incorrect, according to the Applicant, are the ones that talk about there being a population of Hazaras in Lahore. The Applicant says that there are no Hazaras in Lahore, and the DFAT report is wrong.
To this end, he has sought to adduce other evidence that is contained in an affidavit of the counsel of the Applicant filed in this court on 23 November 2018. That information was not before the IAA, and a lot of it does postdate the decision of the IAA.
Notwithstanding that, the Applicant says that such evidence is admissible for this purpose and that is to show that the factual basis upon which the DFAT reports are based do not exist; therefore, in relying upon the factual basis of the DFAT report to say that there are Hazaras, or a Hazara community in Lahore, was a jurisdictional error because such is not correct. However, the Applicant has produced neither in that material, nor anywhere else, anything that would show that the DFAT report was incorrect.
The DFAT reports, he claims, do not show any source material so that the source material could be looked at. That is a matter for the report writers. They are official documents, and it is then for the IAA to decide whether or not to accept those matters. For this ground to have any chance of success, the Applicant really needed to show me conclusive proof that there were no Hazaras in Lahore. He has annexed a UK report and also another report, amongst other things, simply to tell me that these reports are also wrong, and they are wrong because they do not have any source material that is able to be verified.
The first report is a report titled “A tough life for the displaced Hazaras in twin cities” written on 9 March 2014 and the other is a UK Home Office report titled “Country Policy and Information Note, Pakistan: Hazaras” dated November 2016. In those reports, there is talk of the Hazara population. In the UK Home Office report, at 5.2.3, the report quotes an official at the Pak Institute for Peace Studies stating that:
… Many families migrated to different parts of the country, especially Karachi, which already has a sizeable Hazara population, estimated 25,000 families live there. They are concentrated in areas of Hussain Hazara Goth and Mughal Hazara Goth of the city. Those who afford the expensive living of Islamabad also relocated in the capital, but their numbers are small. Reportedly, [a] few families have also migrated to Lahore and [are] living among the Shia population.
The Applicant says that even though he has produced this report, that that this information is wrong because it does not quote any other source of information.
The first report from 2014 said this at paragraph 5.2.2:
…Of the 600,000 Hazara community members, 100,000 have left their hometown [Quetta]… Around 80,000 people migrated from Quetta to Islamabad, Rawalpindi, Lahore and Karachi.
The Applicant says that that report, as well, is wrong. I asked the Applicant to show me any report that he says is actually right. He claims that none of these reports could be considered as right because none of them have the methodology he says that are needed to make the statements that they have. However, it is a claim that he makes, and it is for him to prove it.
The Applicant says that this is the sort of matter where the onus should be reversed and that DFAT should have to prove the contents of their report. I do not accept that submission at all.
In the end, it is a matter for the IAA to accept whatever facts were before it. The country information was simply that as the IAA has said. The decision-maker is allowed to take into account that information under the terms of the Act.
In these circumstances, I find that there is no jurisdictional error in relying upon the DFAT reports. Therefore, I find that there has been no jurisdictional error made by the IAA.
I dismiss the application. Costs are fixed in the sum of $7467.00.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 May 2019