DGP16 v Minister for Immigration
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGP16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3529 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Temporary Protection (Class XD) visa – whether the practice direction issued by the Authority was beyond the power given in s.473FB of the Migration Act 1958 (Cth) – whether the Authority misapplied the relevant law – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476 |
| Cases cited: CGA15 v Minister for Home Affairs [2019] FCAFC 46 |
| Applicant: | DGP16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3013 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 5 December 2019 |
| Date of Last Submission: | 5 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.
DATE OF ORDER: 5 December 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3013 of 2016
| DGP16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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”) made under Part 7AA of the Act on 5 October 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Temporary Protection (Class XD) visa (“Protection visa”).
The applicant was found to be a citizen of Pakistan and his claims were assessed under that country. The applicant was found to be a member of the Turi tribe and a Shia Muslim from a particular agency in the Federally Administered Tribal Agencies (“FATA”).
On 27 December 2015, the applicant applied for a Protection visa. The applicant claimed to fear harm by reason of being a young male, formerly of the Turi tribe and from the FATA area, being a Shia Muslim, an implied political opinion opposed to the Taliban and having lived in the West.
On 16 August 2016, the Delegate found that the applicant failed to meet the criteria for the grant of the Protection visa.
By letter dated 16 August 2016, the Authority wrote to the applicant informing the applicant that the matter had been referred to the Authority for review and attached a factsheet and practice direction which provided the applicant an opportunity to put on new information and submissions. The practice direction identified a five-page limit in respect of submissions but no page limit in respect of new information.
The Authority in its reasons identified the background to the review. The Authority identified having regard to the material referred by the Secretary under s 473CB of the Act.
The Authority identified that the applicant’s migration agent provided submissions which were initially not compliant with the practice direction. The Authority provided the applicant a further opportunity to provide a compliant submission.
The Authority identified that a compliant submission was received on 27 September 2016. That submission did not identify any request to take into account further information exceeding the five-page limit. That submission also followed a practice, which this Court has earlier suggested is not as helpful as might be expected, in simply providing multiple references under topic headings rather than descending into the particular circumstances of the particular applicant and addressing the particular reasoning of the Delegate and the reasoning why the applicant’s claims might be made out. Paragraphs of citations in respect of references are not necessarily something that reflects the focused eye in the circumstances of the applicant’s particular case or develops particular arguments concerning those circumstances. Having said that, it is apparent that the Authority took into account the submissions insofar as they engaged with the Delegate’s decision.
The Authority also identified 45 items of country information and the explanation in relation to the new information in the applicant’s submissions dated 27 September 2016. The Authority found that the information pre-dated the Delegate’s decision. The Authority referred, on the face of its reasons, to the whole of the provisions in s 473DD of the Act. The Authority was not satisfied that there were exceptional circumstances to justify considering those parts of the applicant’s submission dated 27 September 2016 that are links to country information or to the submissions drawn from that country information.
The Authority summarised the relevant law, which was also annexed to the decision and part of the pagination incorporating the same into the Authority’s reasons.
The Authority referred to the applicant’s claimed fear of harm by reason of being a young Turi from the FATA and being opposed to the Taliban. The Authority noted that the applicant has not claimed any personal incidents of past serious harm. The Authority referred to the applicant’s activities after finishing his schooling, working on a family farm and doing some casual work in a language centre. The Authority referred to the applicant’s claims concerning threats to his father and his father being a chief of the applicant’s home village. The applicant identified that he personally never encountered the Taliban, but claimed that the Taliban carried out bombings and targeted attacks in his home area.
The Authority referred to country information regarding the Turi tribe and Shia religion. The Authority accepted that most Turi are Shia and that there is a prevalence of Turi in the applicant’s home area. The Authority referred to the population mix in the applicant’s home area and had regard to country information regarding the home area. The Authority was willing to accept that the applicant is a member of the Turi tribe, a Shia Muslim and from a particular agency in the FATA.
The Authority referred to country information that had been quoted by the Delegate. The Authority noted that a particular Sunni militant group, Lashkar-e-Jhangvi (“LEJ”), is responsible for most of the attacks on Shias throughout Pakistan but that there are other militant groups, including the Taliban, which also target Shias, particularly in the applicant’s home area in the FATA. The Authority referred to being mindful that the Pakistani authorities are taking significant steps to protect Shias throughout Pakistan and in the applicant’s home area.
The Authority referred to country information assessing there is a low level of sectarian violence in the FATA but that the violence is greater in some areas of the FATA, including the applicant’s home area, due to military activities associated with the Pakistan military counter-terrorism operation, Zarb-e-Azb. The Authority also referred to a Department of Foreign Affairs and Trade (“DFAT”) assessment that there is a low level of generalised violence in the applicant’s home area.
The Authority referred to country information relating to incidents of Turis and Shias being harmed in the applicant’s home area by Sunni extremists between 2008 and 2011. The Authority referred to the Delegate stating that, compared to a more peaceful 2014 and in the first half of 2015, there was an increase in military related incidents in the applicant’s home area in the latter half of 2015. The Authority referred to a country information report in respect of a December 2015 attack being possibly a response by LEJ opposed to Turis participating in the Syrian civil war. The Authority referred to a particular country information report which indicated that there were only two civilian injuries and five militant deaths over five incidents in the applicant’s home area in the first quarter of 2016.
The Authority also referred to country information in respect of thousands of families previously displaced by violence returning to the applicant’s home area in 2014 and that the applicant’s home area was identified as being de-notified, safe for return and under the control of the authorities. There is a footnote provided in that regard in respect of a document entitled “Pakistan FATA Weekly Return Snapshot (from 13 to 19 May 2016)” dated 19 May 2016. That snapshot in relation to the FATAs identified almost 49 per cent of families had returned, referring to the 148,508 families that had returned and identifying 155,283 families remaining displaced. There was also a reference to the phases being undertaken in relation to the return of displaced persons, referring to 158 de-notified villages, and, in relation to the applicant’s village in a particular area, by reference to ongoing sectarian negotiations which must be finalised before the final return of 4,500 families to that area.
The Authority found that the applicant’s home area was identified as being de-notified and safe for return and under the control of the authorities. That was a finding clearly open to the Authority based on the country information before the Authority.
It was suggested that there was uncertainty as to the meaning of “de-notified”. It is apparent that that refers to the return of those displaced under phases concerning particular villages.
There is a further reference in the country information, which was identified by Mr Kaplan of counsel of behalf of the first respondent and to which the Delegate referred at paragraph 68 of its reasons, to security forces having launched an offensive against non-state and armed groups on 4 July 2011 in the central and lower particular agency, the objective being to secure particular areas, and that the Inter-Agency Security Assessment Mission to Kurram conducted from 30 March to 3 April 2016 found that the risk of conflict in Kurram remains high and that the security situation of the recently de-notified villages was found to be satisfactory and under the control of the authorities.
The Authority’s reasoning in the last two clauses of paragraph 16 of its reasons were clearly inferences open to the Authority in the making of findings upon the country information identified relevant to the task required by the Authority under the 1951 Refugee Convention.
The Authority found that, on balance, the country information supports the applicant’s claims of past violence against Turi Shias in the applicant’s home area by the Taliban. The Authority accepted the applicant’s claims of his difficulties in study, work and moving around his home area. The Authority accepted that the applicant’s father received threats from the Taliban but found that, after the applicant’s family relocated, no further harm occurred.
The Authority was willing to accept that anti-Shia militant groups, including the Taliban, targeted the applicant’s home area due to high numbers of Turi tribe members who reside there and because the majority of Turi are Shia.
The Authority referred to the most recent country information from 2014, 2015 and 2016 demonstrating that Pakistani authorities have taken significant steps to curb attacks by militant groups and that recent military operations by the Pakistani authorities have reduced the frequency of violence in the applicant’s home area.
The Authority found, on the balance of the evidence before it, there to be only a remote or speculative chance, and therefore not a real chance, that the applicant will face serious harm from the Taliban, LEJ and/or other anti-Shia militant groups, singularly or cumulatively, because of his age, because he is a member of the Turi tribe, because he is a Shia Muslim, because of an alleged imputed anti-Taliban political opinion and because the applicant comes from his home area now or in the reasonably foreseeable future if he returns to Pakistan.
The Authority was not satisfied that the applicant having lived in Australia gives rise to a real chance the Taliban, LEJ or any other anti-Shia militant groups would become aware of and would target the applicant for either as an individual or a cumulative characteristic of the applicant’s profile.
The Authority was willing to accept that the applicant may be questioned on return to Pakistan, however, it was not satisfied that being subjected to a short period of detention for questioning would amount to serious harm.
The Authority was not satisfied that the applicant has a real chance of suffering serious harm from the Pakistani authorities, LEJ, Taliban, Sunni militia and/or Pakistan society because he has lived in Australia now or in the reasonably foreseeable future if he returns to Pakistan.
Having regard to all the evidence considered individual and cumulatively, the Authority found that the applicant did not have a well-founded fear of persecution and that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. Accordingly, the Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.
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. Accordingly, the Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.
Grounds in the Amended Application
The grounds in the amended application are as follows:
1. The Authority denied procedural fairness to the Applicant.
Particulars
The Authority refused to consider written submissions made on the Applicant's behalf because they were more than five pages in length. The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.
2. The Authority made a critical finding which was legally unreasonable.
Particulars
The Authority at [17] accepted that country information supported the Applicant's claims of past violence against Shias in his home area by the Taliban and that the area had been targeted due to the high number of predominantly Shia Turi tribe members. It went on to say that the Pakistani authorities had taken "significant steps to curb" these attacks and had "reduced the frequency" of violence in the area. It then concluded that there was "only a remote or speculative chance" that the Applicant would face serious harm.
The Authority gave no explanation as to how it had assessed that the steps taken by the authorities were so "significant", or the violence in the are was "reduced" to such an extent that the chance of harm had reached a level of being only remote or speculative. The Tribunal's finding lacked any evident and intelligible justification giving rise to an inference that it had not discharged its statutory function in a reasonable manner.
Ground 1
In relation to ground 1, Mr Jones as solicitor on behalf of the applicant identified that the applicant accepted that ground 1 was bound to fail because of a decision in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12. Mr Jones put a formal submission conceding that this Court would be bound by the Full Court.
That was a proper position for Mr Jones to take and preserves his client’s rights in relation to ground 1. As this Court is bound by that decision, no jurisdictional error is made out in relation to ground 1. Nor, in the circumstances of the present case, could this Court have found that there was any denial of procedural fairness in the context of the practice direction given the absence of a limitation in respect of new information and a limit of five pages in respect of submissions and the absence of any request to consider further submissions beyond five pages.
No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Jones submitted that the Authority had made the type of error that was identified in CGA15 v Minister for Home Affairs [2019] FCAFC 46. Mr Jones submitted that, relevantly at paragraph 23 of the Authority’s reasons, the Authority had made such an error and had engaged in a relativistic assessment of the risk rather than the objective assessment required under the 1951 Refugees Convention.
Mr Jones, in that regard, referred to the reasoning of the Authority and contended that paragraph 17 of the Authority’s reasons reflected an intellectual leap from risk in the relatively recent past and that the Authority had not assessed the applicant’s risk in accordance with the correct test, but had rather made the leap of an assessment of relativistic change in the security situation without any finding as to the current level of risk.
Mr Jones also referred, in that regard, to the reasoning of the learned Anderson J in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663, relevantly at paragraph [32], to the effect that it would be an error to engage in a temporal relativistic assessment of risk. That decision also identifies, at paragraph [34], that caution should be exercised in construing the reasons and that the mere reference in the reasons to a risk existing at a point of time previous to the time at which the decision is made does not, by itself, warrant the conclusion that the decision-maker has misapplied the real chance test and that a reference to the security situation having improved over a period of time does not identify misapplication of the real chance test.
The difficulty with Mr Jones’s submissions is that it is apparent that the Authority did not engage in a mere relativistic assessment in respect of the real chance test for the reasonably foreseeable future in respect of the applicant. The Authority’s reasons identified taking into account the applicant’s circumstances, which include the absence of any personal incidence of past serious harm as identified in paragraph 13 of its reasons, the DFAT assessment that there is a low level of generalised violence in the applicant’s home area and the country information in respect of the return of those displaced, including the applicant’s home area being de-notified and safe for return and under the control of authorities. The Authority did not reason merely by reference to the reduced frequency of violence in the applicant’s home area from a temporal view point.
The reduced frequency of violence was a relevant and legitimate matter for the Authority to take into account and does not support the conclusion that the Authority has failed to apply the correct test in the circumstance of the present case. The Authority expressly referred to the balance of the evidence before the Authority and that language should not be read with a keen eye for error. The Authority’s reasons clearly identify the Authority taking into account all of the circumstances in the context of the finding that there is only a remote or speculative chance and therefore not a real chance that the applicant will face serious harm in his home area now or in the reasonably foreseeable future.
Mr Jones submitted that the Court should place no weight on the phrase “on the balance of the evidence before me” and sought to refer to a decision of this Court in which there had been an assessment that the only evidence that was identified was the relative incidents of violence. That decision is clearly distinguishable from the circumstances of the present case. The Court accepts the respondent’s submission that the decision in CJE15 is clearly distinguishable on the facts of this case and cannot support a finding of a relativistic determination of a real chance test.
The Authority’s reasons support that the Authority correctly applied the relevant law on the evidence before the Authority in the circumstances of the applicant. The Authority’s reasons did not reflect the intellectual leap contended by Mr Jones. The Authority’s findings were not dependent upon what was alleged to be the key finding supporting the assertion of the leap. It follows it was not correct to contend that the only basis for the adverse finding was the assessment of recent relative change in the security situation. That was not the only basis for the Authority’s adverse finding in respect of the application of the real chance test.
The Authority’s application of the real chance test did not reflect a confinement to relative change in the security situation and did not reflect a misapplication of the real chance test in the circumstances of the applicant.
No jurisdictional error as alleged in ground 2 is made out.
Accordingly, the amended application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 December 2019 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 27 February 2020
DGP16 v Minister for Immigration [2019] FCCA 3529
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