Deo19 v Minister for Immigration

[2020] FCCA 3412

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEO19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3412

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider an integer of the Applicant’s claim – whether the Authority failed to give real, genuine and proper consideration to cogent evidence before it – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: DEO19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2153 of 2019

Judgment of: Judge Street

Hearing date: 14 December 2020

Date of Last Submission: 14 December 2020

Delivered at: Sydney

Delivered on: 14 December 2020

REPRESENTATION

Counsel for the Applicant: Mr D McDonald-Norman via Microsoft Teams

Solicitors for the Applicant: Michael McCrudden Solicitors Pty Ltd

Counsel for the Respondents: Mr N Swan via Microsoft Teams

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,900.00.

DATE OF ORDER: 14 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2153 of 2019

DEO19

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 for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act made on 16 July 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Pakistan, and his claims were assessed against that country.

3. The applicant claimed to fear harm by reason of being a Qandhari Pashtun of the Yusufzai sub-tribe, and a practising Muslim from a particular area in Pakistan.

4. The applicant alleged that the situation in that particular area had deteriorated over time, and alleged that he was injured in a particular attack. 

5. The applicant also made reference to Lashkar-e-Jhangvi (“LeJ”) targeting businessmen and professionals in relation to his work in running a jewellery business. 

6. The applicant also alleged that he was followed by persons on motorcycles in 2012, and that he was present at an attack in January 2013 in a particular location where he narrowly avoided harm, and where he lost seven cousins to the attack. 

7. The applicant claimed to fear harm from the LeJ and the Sipah-e-Sahaba Pakistan (“SSP”), as he is a Shia and because he is a jeweller. 

8. The applicant also claimed to fear harm by reason of being a failed asylum seeker with an imputed anti-Islam sentiment and the perception of wealth.

9. The applicant also contended that he is unable to safely or reasonably relocate to another part of Pakistan.

10. On 17 June 2019, the Delegate found that the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa. 

11. The Authority wrote to the applicant on 20 June 2019 informing the applicant that the application had been referred to the Authority for review, and attaching a fact sheet and Practice Direction giving the applicant the opportunity to put on new information and submissions. The applicant did not put on any new information and submissions. 

12. The Authority referred to the background of the Safe Haven Enterprise visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and set out the relevant law, including in an annexure of applicable law incorporated by pagination. 

13. The Authority, in that regard, identified that the applicant is not Hazara, but that his wife is Hazara, and he claims that his children look Hazara, and the Authority accepted that proposition. The Authority also accepted that they had lived in a Hazara-dominated area in a particular location. 

14. The Authority was not satisfied that the applicant was ever targeted or a person of interest to the anti-Shia militant groups or anybody in a particular area for being mistakenly identified as Hazara, or viewed as affiliated with the Hazara community. 

15. The Authority accepted that the applicant was present at a particular incident in 2004 and may have been injured, and accepted that he had been employed as a jeweller in a particular area. The Authority also accepted that Shia business persons and professionals were targeted in that area, and that the applicant felt unsafe as a businessman in that area. 

16. The Authority was not satisfied that the applicant was personally targeted or threatened at any stage, but was prepared to accept, given the other consistent evidence, that due to his broader safety concerns, he stopped working in August 2012 and gave his shop to another person to run. 

17. The Authority was also prepared to accept that the applicant was present at the time of an incident in January 2013. 

18. The Authority referred to the Delegate having found that the applicant faced a real chance of persecution in a particular area, and the Authority identified that the real chance of persecution must relate to all areas of Pakistan, and referred to the Delegate raising with the applicant areas, which included Karachi and Islamabad, where Shia and Sunni communities were generally well-integrated, and that the applicant had a familiarity with one of those areas. 

19. The Authority expressly addressed that the applicant had provided a number of reasons why he could not relocate to another city in Pakistan. The first related to the government’s alleged involvement with killings and harassment of Shias. The Authority referred to country information that indicates that strong measures to combat security and other violence are being taken across Pakistan, and that there has been an ongoing improvement in security situations overall across Pakistan, and that there have been declining attacks identified in Islamabad and Karachi in particular. The Authority also referred to reduced sectarian violence across Pakistan. 

20. The Authority turned to a further reason advanced by the applicant that he would be recognised as coming from a particular area because he speaks Farsi. The Authority took into account country information and found that it does not support specific instances of targeting Hazaras, Hazara enclaves or living quarters in Islamabad and Karachi in recent times.

21. The Authority was not satisfied that the applicant was ever adversely targeted or of interest to anti-Shia militant groups or anybody else due to being mistaken as Hazara or seen as affiliated with Hazaras, nor was the Authority satisfied that the applicant would be on return to Islamabad or Karachi. 

22. The Authority expressly referred to the fact that the applicant’s wife is Hazara and his children have Hazara features.  However, the Authority said that on the evidence before it, it does not suggest that the applicant would face a real chance of harm due to his family members’ ethnicity, or for living among other Hazaras in Karachi and Islamabad. 

23. The Authority also referred to Department of Foreign Affairs and Trade (“DFAT”) country information in relation to Hazaras in urban centres outside a particular location, and that there are enclaves in Karachi. The Authority noted that the applicant did not claim to reside or affiliate with other Hazaras on his multiple trips to Karachi previously. 

24. The Authority referred to the country information in relation to Shia communities. It found that the country information does not support the fact that the applicant, being from a particular location, or having a Farsi or Hazara accent, or perceived as affiliated with a Shia community or family members in those cities would pose any problems to him in Islamabad or Karachi, and the Authority was not satisfied that this would be the case. 

25. The Authority referred to other country information in relation to the risk of sectarian violence.

26. The Authority also referred to the applicant’s submission that he would not be secure in a particular area, meaning that he would not be secure in other cities as they are all still part of Pakistan, and claiming that he would be forced to renounce or abandon his religion and convert to Sunni Islam to avoid problems. The Authority found that the country information did not support those claims. The IAA found that the country information does not support the targeting of Shias in Islamabad or Karachi.

27. The Authority referred to the applicant’s claim of harm in Pakistan as a jeweller and the Authority found that the evidence does not support the targeting by militant groups, or anyone else, in Islamabad or Karachi, of jewellers. 

28. The Authority also referred to the applicant’s claim of it being more dangerous for him in a strange city where he has no community. In that regard, the Authority made reference to the applicant’s multiple trips to Karachi that were made alone, as was his travel to Islamabad, and that the applicant did not claim to have experienced safety concerns during those trips. The Authority did refer to the applicant’s evidence about the applicant staying inside but noted that, at the protection interview, the applicant confirmed that he faced no issues doing business in Karachi. The Authority was satisfied that the applicant did make public appearances without apparent adverse attention to him and that his trips to Karachi and brief time in Islamabad suggest he has at least some familiarity with those cities.

29. The Authority referred to a submission that the applicant would be required to pay protection money, and the Authority referred to country information in that regard and also took into account the use of violence, and that the applicant has not claimed any membership of particular political parties. 

30. The Authority then turned to the applicant’s claim that he would be unable to operate his business in another city. The Authority again referred to country information that Shias did not suffer any greater economic disadvantage than other groups in Pakistan and that migrant groups in cities such as Islamabad are known to have often owned and worked for small businesses.

31. The Authority expressly referred to the issue of systematic discrimination against Shias in gaining employment and country information that overall assessed that Shias, who are not Hazara or Turi generally did not face discrimination based on their religious affiliation when seeking employment. The Authority referred to DFAT information suggesting that in recent years Hazaras in Pakistan may face low level societal discrimination that reflects individual prejudice. The Authority found, however, that the country information, including the DFAT country information, does not indicate that Hazara affiliates may face any such discrimination in cities such as Islamabad and Karachi.

32. The Authority referred to the large urban centres in Karachi and Islamabad as being a home to mixed ethnic and religious communities and offering better opportunities for employment and access to services and state protection. 

33. The Authority identified there being large communities in Islamabad and Karachi that are home to mixed ethnic and religious groups.

34. The Authority referred to the applicant’s employment history and experiences, including his proven ability to engage in business transactions in Karachi and did not accept that the applicant would be unable to operate a business in another city. The Authority found that there is no evidence that the applicant would otherwise face problems with accessing employment, setting up a business, or sourcing accommodation in Karachi or Islamabad.

35. The Authority then turned to the applicant’s claim that travelling between cities is dangerous and referred to the applicant having travelled by plane to Islamabad en route to Australia without any apparent difficulty. The Authority found that the applicant could enter Karachi or Islamabad directly by international airport and found that there was no credible evidence to suggest that travel would be unsafe for him or any further explanation as to why travelling between those cities on his return would be dangerous.

36. The Authority then turned to the applicant’s claimed fear of harm as a failed asylum seeker, as well as an imputed anti-Islam sentiment and perception of wealth. The Authority was not satisfied that the applicant would be imputed with any anti-Islam sentiment in connection with his asylum attempt.

37. The Authority then turned to the issue of security and sectarian violence across Pakistan and was not satisfied that the applicant would, in the reasonably foreseeable future, face a real chance of any harm in Islamabad or Karachi, and was satisfied that the applicant can safely and lawfully access Islamabad and Karachi through the international airports. 

38. The Authority was not satisfied that the applicant has a well-founded fear of persecution, and found that the applicant does not meet the requirements and definition of refugee in s 5H(1) of the Act and does not meet the criteria in s 36(2)(a) of the Act.

39. The Authority then turned to the issue of complementary protection and took into account the findings made in relation to the Refugee Convention and the applicant not facing a real chance of harm in Islamabad or Karachi for any reason. The Authority, taking into account the country information, found that the applicant would not face a real risk of significant harm in Islamabad or Karachi for any reason.

40. The Authority then turned to the issue of reasonableness of relocation and expressly referred to the submission that the applicant’s lack of family outside his home area makes relocation unreasonable and that the applicant claimed that he would be unable to operate his business and therefore unable to support his family, including his two children, his wife and his father who depend on him.

41. The Authority also took into account the applicant’s submission that his survival in Australia without family and friends does not mean that he could manage in the same way in Pakistan. The Authority expressly referred to the submission that the high cost of living in other cities would make relocation unreasonable. 

42. The Authority expressly referred to the applicant’s lack of familial and other known support networks in respect of the applicant’s ability to undertake the difficult journey to Australia, demonstrate a self-reliance and resilience, and establish himself in a foreign context, to make new contacts and to source accommodation and employment.

43. The Authority found that the applicant had demonstrated resourcefulness in Australia, including an ability to acquire accommodation, as well as finding somewhere to live with Pakistani housemates. The Authority took into account that his housemates have included persons of Hazara ethnicity as well as an Urdu speaking housemate from Karachi. The Authority found that this further suggests the applicant’s ability to integrate and live with Pakistani persons of different ethnic backgrounds to himself.

44. The Authority also referred to the applicant’s language skills in Hazaragi, Farsi, English, Pashtun and Urdu. The Authority referred to the applicant’s reliance on his abilities to negotiate in Urdu language with shopkeepers in Karachi to purchase items for his business. The Authority expressly referred to discrimination in Pakistan identified in DFAT reports, including nepotism, in favour of one’s own family in tribal or social group. The Authority found that the evidence suggests that the applicant would be able to and is well placed, based on his acquired skills and experience as outlined, to acquire a source of income and to subsist.

45. The Authority took into account country information together with the applicant’s evidence, and found that it did not suggest that the applicant would face any threats to his ability to survive or support his family due to the possible absence of a particular community in Islamabad or Karachi. 

46. The Authority referred to the applicant claiming that he would be recognised as coming from a particular location in other cities as he speaks Farsi. The Authority took into account that the applicant did not suffer any issues in business transactions for being recognised as coming from a particular place.

47. The Authority referred to the applicant’s long-term employment in Pakistan and his reliance on engaging business transactions for the purpose of that employment in other cities, when those trips were made alone and without familiar or tribal support. The Authority found that the applicant’s ability to acquire specialised work in Australia despite his lack of equivalent recognised Australian qualifications, and despite having a lower salary to others who do hold qualifications, highlights his ability to source employment in challenging or competitive business environments and circumstances.

48. The Authority took into account country information in relation to those with relevant skills, including foreign language skills and found that the applicant’s asserted education level would mean that he lacks the skills to manage in a large city with a competitive market where business is more demanding.

49. The Authority referred to the applicant’s depression and anxiety and counselling that he had undertaken and noted that the applicant did not raise any credible evidence to suggest that his mental health condition would warrant relocation being unreasonable, and that DFAT indicates basic healthcare in Pakistan is free.

50. The Authority then turned to the submission that the separation from the family that he had lived away from for many years while in Australia meant it would not be reasonable for the applicant to be expected to relocate elsewhere without his family members in Pakistan, given it was submitted that one should have their community around them. The Authority expressly referred to the long term separation by the applicant from his family members that was identified as an underlying factor for his mental health conditions. The Authority found that there is no credible evidence to suggest that the applicant’s family would be precluded from joining him, either immediately or after he has established himself in Islamabad or Karachi. The Authority also noted that the applicant managed to provide financial support to his family members despite not working for eight months prior to his departure from Pakistan. 

51. The Authority referred to the broader security conditions in Islamabad and Karachi, and the country information indicating ongoing secure security conditions in Islamabad and significant reduction in the capacity of non-state agents to carry out violent acts in Karachi.

52. The Authority did not accept that the applicant would be required to pay protection money to extortionists in Karachi, or that it would be impossible for him to start a business there for this or any other reason. 

53. The Authority found that the applicant can travel safely by plane to Islamabad or Karachi, and took into account that he has used this mode of transport in the past, as could his family, if required. 

54. The Authority, having referred to the applicant’s individual circumstances and the situation in Islamabad and Karachi, including the overall stable security situation, was satisfied that it is reasonable for the applicant to relocate to Islamabad or Karachi, where the Authority found that the applicant would not face a real risk of significant harm.

55. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant be returned to Pakistan, there is a real risk that the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. Mr McDonald-Norman, counsel on behalf of the applicant, relied upon the following ground:

   1.In its assessment of whether it would be reasonable for the Applicant to relocate within Pakistan, the second respondent (Authority):

   a.   failed to consider an integer of the Applicant’s claim that it would not be reasonable for him to relocate within Pakistan; and/or

   b.   failed to give real, genuine and proper consideration to cogent evidence before it as to whether it would be reasonable for the Applicant to relocate within Pakistan.

   Particulars

   a.   The Authority found that the Applicant’s agent had made a submission that “having lived away from his family for many years while in Australia, it would not be reasonable for the applicant to be expected to relocate elsewhere without his family members in Pakistan, given also that in Pakistan one must have their community around them”: CB 170 [47].

   b.   The Authority accepted that the Applicant’s wife was a Hazara and that his children look Hazara: CB 162 [13].

   c.   The Authority relied on reports published by, amongst other organisations, the Department of Foreign Affairs and Trade (DFAT), including its 2019 report DFAT Country Information Report – Pakistan (20 February 2019) (DFAT Report), to support its findings:

   i.that the Applicant did not face a real chance of being harmed in Karachi or Islamabad: CB 168 [36];

   ii.that it would be reasonable for the Applicant to relocate to Karachi or Islamabad: CB 171 [50].

   d.   As part of its consideration of the issue of relocation, the Authority said: “There is no credible evidence before me to suggest the applicant’s family would be precluded from joining him, either immediately or after he has established himself in Islamabad and Karachi” (emphasis added) (CB 170 [47]) (No Credible Evidence Finding).

   e.   The Authority also found that “in 2019 DFAT indicates Hazaras in urban centres outside Quetta tended not to live in enclaves and that there are few such enclaves in Karachi”: CB 165 [24]; DFAT Report p 27 [3.28].

   f.    The DFAT Report states (pp 29-30 [3.47]): “DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation. Significant security measures taken by Hazara communities mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence”.

   g.   In making the No Credible Evidence Finding:

   i.the Authority did not consider whether risks of violence to the Applicant’s family upon relocation in Pakistan would preclude them from joining him in Islamabad and/or Karachi, and to that extent failed to consider an integer of whether it would be reasonable for the Applicant to relocate within Pakistan; and

   ii.the Authority did not give real, genuine and proper consideration to the DFAT Report insofar as it contained information relevant to whether the Applicant’s family would be at risk of violence if they were to relocate to join him in Islamabad and/or Karachi, and to that extent did not consider material relevant to whether it would be reasonable for the Applicant to relocate within Pakistan.

   h.   In the premises, the Authority’s decision was affected by jurisdictional error.

2. Mr McDonald-Norman submitted that there was an integer of the applicant’s claims that arose on the material that the Authority had failed to address, and in that regard advanced that the Authority had failed to consider whether relocation to Karachi or Islamabad was safe for the applicant’s wife and children.

3. Mr McDonald-Norman, in that regard, referred to the Hazara ethnicity of the wife and the appearance of the wife and children, and submitted that the Authority should have found that there was a claim that arose to fear harm, upon relocation, to his wife and children from sectarian violence and/or discrimination. No such claim fairly arose on the material before the Authority.

4. Mr McDonald-Norman further submitted that the Authority had failed to have a genuine intellectual engagement with the applicant’s claims and evidence in relation to the reasonableness of relocation. Mr McDonald-Norman relied in that regard, again, upon the applicant’s wife’s Hazara ethnicity and the appearance of his wife and children, and referred to country information that identified risks in relation to Hazaras.  This was, in substance, an invitation to engage in merits review.

5. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s claims and evidence in the making of dispositive findings that were open for the reasons given by the Authority, as summarised above.

6. Further, a fair reading of the Authority’s reasons reflect that the Authority did take into account the practical reasonableness for the applicant and his family to relocate to Islamabad or Karachi, and the Court finds that the reference to the applicants’ individual circumstances included the circumstances of his wife and children in the consideration of reasonableness. 

7. It is further apparent that the Authority did take into account the security situation in Islamabad and Karachi, and the ability of both the applicant and his family to travel to Islamabad or Karachi. 

8. The Authority’s reasons reflect a real and meaningful consideration of the practicalities of relocation for the applicant in his individual circumstances. 

9. Further, the express reference to “Hazara affiliates” facing discrimination,” in paragraph 33 of the Authority’s reasons, is clearly a reference that includes the applicant’s family affiliates.

10. It is also the case that the Authority expressly referred to the applicant having been separated for a long period of time from his family in the context of finding that it was reasonably practical for the applicant in these circumstances to relocate. 

11. Taking into account the framework set by the applicant in relation to his objections to relocation, the Authority’s decision reflects a genuine and meaningful engagement with each of the applicant’s objections and the making of dispositive findings that were open.

12. The Court has already accepted the submission of the first respondent that no claim was made or clearly arose to the effect that it would unreasonable for the applicant to relocate within Pakistan because, if his family relocated with him, his wife and children were at some particular risk of violence or societal discrimination.

13. The Court accepts the first respondent’s submissions that the Authority squarely addressed and considered the reasonableness of relocating within Pakistan, dealing with the matters that were raised by the applicant, and that the Authority was not satisfied that the applicant’s family would be unable to relocate and join him in Islamabad or Karachi. 

14. There is no basis to find that the Authority failed to consider whether the applicant’s family would, if they relocated, face any risk of violence or would suffer societal discrimination because of being or appearing to be Hazara. The Authority’s reasons, to which the Court has already referred, make apparent the consideration of a practical reasonableness of relocation in respect of the applicant’s individual circumstances. 

15. No jurisdictional error as alleged in the amended application is made out. 

16. Accordingly, the amended application is dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 February 2021