DEU19 v Minister for Immigration

[2020] FCCA 2345

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEU19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2345

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority correctly applied the relevant law – whether the Authority’s decision was legally unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 5H, 5J, 36, 473CB, 473DC, 473DD, 476

Applicant: DEU19

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2167 of 2019

Judgment of: Judge Street

Hearing date: 24 August 2020

Date of Last Submission: 24 August 2020

Delivered at: Sydney

Delivered on: 4 September 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Ms P Durham via Microsoft Teams
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2167 of 2019

DEU19

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 31 July 2019 affirming the 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. The applicant was found to be of Pashtun ethnicity and a Bangash Shia from a particular location. The applicant arrived in Australia as an unauthorised maritime arrival in July 2013. The applicant applied for a Safe Haven Enterprise visa in September 2016.

3. The applicant claimed to fear harm, in summary, as a result of events that occurred in an attack on his father’s shop in 2007, from Sunni extremist groups such as the Taliban, Lashkar-e-Jhangvi (“LeJ”), Sipah-e-Sahaba Pakistan (“SSP”) and the Islamic State in Iraq and Syria (“ISIS”), because he is a Bangash Pashtun and a Shia Muslim and because of where his home is. The applicant also claimed to fear harm by reason of his health issues and limited employment opportunities.

4. On 1 July 2019, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.

5. On 4 July 2019, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions. The applicant put on new information and submissions.

6. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.

7. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.

8. The Authority identified new information provided with the submissions on behalf of the applicant and, in particular, psychologist reports dated 8 and 22 July 2019. The Authority identified taking into consideration the whole of the limbs of s 473DD of the Act and was not satisfied that there were exceptional circumstances to justify considering the new information in relation to the psychologist reports.

9. The Authority, in that regard, took into account the want of any explanation of the relevance of the new information and that the Authority had accepted that the applicant has mental health issues on the material before the Authority. The Authority also referred to the fact that there was already a report in relation to the applicant having suffered depression, stress and post-traumatic stress disorder from a person dated 5 October 2018, being a psychologist who identified as having been the applicant’s treating psychologist since 9 March 2018.

10. The Authority also identified a new claim introduced in relation to the applicant being well-known because of his work in a particular location for his father, and as a student and teacher. The Authority was not satisfied that there are exceptional circumstances to justify considering this new information.

11. The Authority identified that insofar as the submissions on behalf of the applicant engaged with the Delegate’s decision it was not new information and had regard to the same.

12. The Authority identified there was some material that was new information in relation to copies of documents. The Authority identified the same and, in relation to the seven country information documents that pre-date the Delegate’s decision, found that there were not exceptional circumstances to justify considering the same.

13. The Authority summarised the applicant’s claims.

14. The Authority identified the relevant law, including in an attachment of applicable law incorporated by pagination in the Authority’s reasons.

15. The Authority accepted that the applicant’s family, including his extended family except for his father, continue to live in the family home. The Authority identified the applicant’s home area in the Upper Kurram Agency as the place to which the applicant would return.

16. The Authority also referred to the applicant having two brothers and that one suffered a shrapnel wound and the other suffered psychological injury as a child.

17. The Authority accepted that there was a fight at the applicant’s father’s shop in 2007.

18. The Authority referred to country information and found that the level of security now present in the applicant’s home region makes the occurrence of attacks at religious events only a remote possibility.

19. The Authority took into account that although the applicant’s father’s shop was damaged, the applicant did not claim that his father’s business was individually targeted.

20. The Authority was not satisfied that ISIS has an active presence in the applicant’s home area. The Authority was also not satisfied that the applicant faced a real chance of harm from the Taliban, LeJ, SSP, ISIS or any other anti-Shia extremist groups because he is a Shia in his home region.

21. The Authority did not accept that the applicant as a Bangash Shia faces a real chance of harm in his home region.

22. The Authority referred to the applicant’s ethnicity. The Authority found that there was no claim or evidence that the applicant had suffered any discrimination in the past in his home area because of his ethnicity. The Authority found that the applicant does not face a real chance of harm in his home area in the reasonably foreseeable future as an ethnic Pashtun.

23. The Authority referred to the applicant being a Shia, living in a Shia area and being potentially imputed as having anti-Sunni extremist views. The Authority found that the applicant does not face a real chance of harm for these reasons.

24. The Authority did not accept that the applicant or any member of his family would be targeted because they are members of a particular social group, being the family.

25. The Authority found that the applicant’s claim to fear harm by reason of his religion not to be well-founded.

26. The Authority found that the applicant does not face a real chance of harm for reason of his relationship to his father.

27. The Authority found that the general security situation in Pakistan and in the applicant’s home area had improved since the applicant left in 2013. The Authority found that there was not a real chance of harm for the applicant as a Bangash Shia man travelling to his home area by road in the reasonably foreseeable future.

28. The Authority expressly referred to the applicant’s mental health issues and that he had been treated for kidney stones. The Authority noted that the applicant did not raise any claim to fear harm for reasons falling within s 5J(1) of the Act in this regard.

29. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the requirements in s 36(2)(a) of the Act.

30. The Authority expressly referred to the applicant’s claims to suffer harm for reasons of his mental health and his claim that he would not be able to work with these conditions. The Authority found, in that regard, that the applicant had been working as a driver in Australia. The Authority referred to social stigma in relation to the applicant’s psychiatric illnesses in Pakistan and referred to country information. The Authority did not accept that the applicant would be stigmatised or mistreated in a way that constitutes significant harm for reason of his health issues, within these circumstances. The Authority found that any difficulty the applicant may have in accessing medical treatment would not amount to significant harm.

31. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the requirements in s 36(2)(aa) of the Act.

32. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 22 August 2019. On 31 October 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application but no other documents. The amended application filed on 12 August 2020 was the subject of a grant of leave for the applicant to rely upon the same.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant in oral submissions identified that there was an updated psychologist report, being by a different psychologist to whom the applicant had been referred by his GP. For the purpose of tendering that psychologist report, the applicant sought an adjournment. The adjournment was opposed by the first respondent.

4. The Court is not in a position to make fresh findings in respect of the merits of the applicant’s claims. The psychologist’s report was clearly irrelevant and the Court was satisfied that an adjournment was not warranted in the interests of the administration of justice. The Court was not satisfied that an adjournment would be of any utility. It is for these reasons that the Court made an order refusing the oral application for an adjournment.

5. The applicant again raised that he wanted an opportunity to put on further evidence in support of his claims, in substance, for the same reasons. The Court declined to grant the applicant an adjournment as the Court is not in a position to make fresh findings in respect to the merits of the applicant’s claims. The applicant has been given a fair opportunity to put on relevant material by the orders by the Registrar on 31 October 2019. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

6. The applicant referred to the incident at his father’s store and also to a recent bomb blast in 2020. The recent bomb blast event, in terms of country information that was not before the Authority, is not capable of being taken into account by this Court in relation to any jurisdictional error. The applicant’s claims in relation to the incident involving his father’s shop and the applicant’s mental state were matters taken into account and considered by the Authority in making adverse findings that were open for the reasons given by the Authority, as summarised above. The applicant’s disagreement with the adverse findings by the Authority does not identify any jurisdictional error.

7. The applicant’s oral submissions otherwise, in substance, invited this Court to engage in merits review or to determine the matter on compassionate or discretionary grounds. This Court has no power to determine the matter on compassionate or discretionary grounds.

8. Nothing submitted by the applicant orally identified any jurisdictional error.

Grounds in the amended application

1. The grounds in the amended application are as follows:

   1. The Second Respondent (the IAA) failed to make a proper assessment of "new information" which had been provided to it, pursuant to s.473DD of the Migration Act 1958 (Cth).

   Particulars

   a. The IAA, at [5]-[6] of its decision, found that there were no exceptional circumstances to justify considering the psychologist report prepared by … dated 22 July 2019 (the psychologist's report). The IAA made this finding notwithstanding the fact that, at [5] of its decision, it was otherwise satisfied that the psychologist's report met the requirements of s.473DD(b )(i) and (ii).

   b. The IAA, at [6] of its decision, also found that there were no exceptional circumstances for considering an alleged new claim raised in the psychologist's report (the new claim). The new claim related to the Applicant being well known because of his work in … for his father, and as a student and teacher, and that this information would be spread to groups who are doing kidnapping and killing.

   c. The Applicant had previously raised a claim about working at his father's shop at his entry interview. This claim was clarified further in a statutory declaration provided as part of his visa application.

   d. In finding that there were no exceptional circumstances to justify considering the new information, the IAA unduly narrowed its consideration of the term "exceptional circumstances" in s.473DD(a) of the Act by focusing on the lack of explanation as to the relevance of the psychologist's report and failing to have regard to the full context of the new information provided by the Applicant to it, including a claim supported by country information of significant harm from the social stigma attached to psychiatric illness in Pakistan.

   e. The information about the Applicant's worsening mental health condition and the new claim as contained in psychologist's report augmented and did not contradict facts which were otherwise accepted by the IAA on the evidence already before it, including the social stigma attached to psychiatric illnesses in Pakistan.

   f. In finding that the new claim was not credible personal information, the IAA proceeded on an unwarranted assumption that it was not credible personal information, in circumstances where it had already accepted that the psychologists report in which the claim was contained, was credible personal information.

   g. The matters referred to above were material to the IAA's conduct of the review. Consequently the IAA's decision was affected by jurisdictional error.

   2. Further and in the alternative, the IAA failed to consider exercising its powers under s.473DC of the Act to obtain further information from the Applicant and/or his treating psychologist, for the purposes of clarifying and considering the new claim contained within the psychologist's report. The IAA's failure in this regard was legally unreasonable.

   Particulars

   a. The IAA, at [6] of its decision, found that there were no exceptional circumstances for considering a new claim raised in the psychologist's report (the new claim). The new claim related to the Applicant being well known because of his work in … for his father, and as a student and teacher, and this information would be spread to groups who are doing kidnapping and killing.

   b. In rejecting the new claim raised in the psychologist's report, the IAA found at [6], that:

   i. there was nothing from the applicant to clarify or detail this claim, or explain why it was not put any earlier; and

   ii. there was no confirmation from the applicant that it was a new claim that he wished to advance.

   c. The IAA had already found, at [5] that the psychologist's report could not have been provided to the Minister before the date of the delegate's decision and that it constituted credible personal information. Page 3 of the psychologist's report invited the reader to contact … at … Medical Centre on "Mondays, Tuesdays, Thursdays and Fridays" if there were any enquiries, and also included contact details for the medical centre.

   d. Despite its concerns as referred to above at (b), the IAA did not consider exercising its powers under s.473DC of the Act to get new information from … or the Applicant about matters including (but not limited to) the timing of the making of the new claim by the Applicant to …, and whether it was in fact a claim that was pressed by the Applicant. This was legally unreasonable as these enquiries were obvious enquiries about critical facts that could have affected the outcome of the IAA's decision.

Ground 1

1. In relation to ground 1, it is apparent from the Authority’s reasons that the Authority took into account the whole of the limbs of s 473DD of the Act in determining whether or not there were exceptional circumstances to justify considering the more recent psychologist reports. It is apparent that the Authority understood the applicant’s submissions in relation to being exposed to social stigma because of his mental health, as referred to in paragraph 23 of the applicant’s written submissions and that the Authority expressly referred to it, took it into account and made adverse findings in respect of the applicant’s claims in that regard at paragraphs 31 and 36 of the Authority’s reasons.

2. Ground 1 inaccurately advances that the Authority suggested that the psychologist’s reports were not credible personal information. The Authority’s reasons are expressly to the contrary. The Authority was not, however, required to accept the new information in relation to the psychologist’s reports merely because it was credible personal information. The Authority provided logical and rational reasons in support of its adverse decision, including the want of any explanation in respect of the relevance of the new information and the fact that the Authority accepted that there is information in relation to the applicant’s mental health conditions which the Authority accepted.

3. The adverse findings by the Authority under s 473DD of the Act in relation to the psychologist’s report do not reflect any misconstruction or failure to correctly apply s 473DD of the Act in relation to the new information, being the psychologist’s reports dated 8 and 22 July 2019.

4. There was no finding of the kind advanced in the particulars to ground 1 that the Authority proceeded on an unwarranted assumption. The Authority’s adverse findings cannot be said to lack an evident and intelligible justification for the reasons already summarised.

5. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this ground alleges that the Authority legally unreasonably failed to exercise, or expressly consider exercise of, the powers under s 473DC of the Act in relation to the new claim contained in the psychologist’s report that the Authority identified as the applicant being well-known because of his work in his home region for his father and as a student and teacher.

2. The Authority, in that regard, identified that it had concerns about whether it was credible personal information and as to whether or not the applicant could have raised the same before the Delegate.

3. The Authority was not satisfied that that new information met the requirements of s 473DD(a) of the Act. The Authority took into account the vagueness of the claim, the absence of any explanation from the applicant as to why the new claim about being well-known and information being spread had not previously been put and the absence of express confirmation by the applicant that it is a new claim that he wishes to advance.

1. The Authority’s adverse reasons cannot be said to lack an evident and intelligible justification for not expressly considering the powers under s 473DC of the Act. That evident and intelligible justification is the opportunity the applicant had already been given as a result of the fact sheet and practice direction to put on new information in submissions and the absence of explanation by the applicant identified by the Authority in its reasons, as summarised above.

2. The absence of an express consideration of the powers under s 473DC of the Act, in the circumstances of this case, does not give rise to any jurisdictional error as alleged in ground 2.

3. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 4 September 2020