DID22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 775
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DID22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 775
File number: PEG 194 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 24 August 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether applicant is a ‘fast track applicant’ as defined in s 5 of Migration Act 1958 (Cth) – whether Authority’s finding of applicant’s citizenship was the subject of any real doubt – whether Authority required to apply ‘what if I am wrong?’ test – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 36, 473CA, 476, 477 Cases cited: AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 16 August 2023 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: Savannah Legal Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: MinterEllison Lawyers ORDERS
PEG 194 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DID22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
24 August 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant was granted a temporary protection visa on 7 December 2016. That visa was valid until 7 December 2019 and was granted on the basis that the applicant was a citizen of Afghanistan who was owed protection because of the risk of harm he would face if returned to Afghanistan. On 9 April 2019 the applicant applied for a subsequent protection visa. A delegate of the Minister refused to grant the applicant a subsequent protection visa, finding that he is a citizen of Pakistan rather than Afghanistan. That decision was affirmed by the Immigration Assessment Authority (Authority) on 1 September 2022. The applicant now seeks judicial review of the Authority decision, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant advances a sole ground of application. That ground requires the Court to consider whether the Authority showed sufficient doubt in its finding that the applicant is a Pakistani citizen that the Authority ought to have applied the ‘what if I am wrong test?’ and proceeded to assess whether the applicant would meet the criteria in s 36 of the Migration Act if Afghanistan was the receiving country.
For the reasons explained below, I have found that the applicant has not established jurisdictional error in the Authority decision and I therefore dismiss the application for judicial review.
VISA APPLICATIONS AND DECISIONS
The applicant claims to be a citizen of Afghanistan. He entered Australia by sea in July 2012.
On 14 February 2013 the applicant applied for a protection visa. A delegate of the Minister made a decision on 7 December 2016 to grant the applicant a temporary protection visa (first visa), finding that the applicant was a citizen of Afghanistan and a person in respect of whom Australia owed protection obligations.
On 9 April 2019 the applicant applied for a subsequent temporary protection visa (subsequent visa). In his subsequent visa application, the applicant indicated that his reasons for claiming protection had not changed since the grant of his first visa.
On 9 May 2022 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection. Following the interview, the Minister’s Department requested that the applicant provide additional evidentiary documents relating to the identity of the applicant and his family. The applicant subsequently provided some but not all of the requested identity documents to the Minister’s Department.
On 18 July 2022 a delegate of the Minister refused to grant the applicant a subsequent visa. The delegate assessed that the applicant is a citizen of Pakistan, not Afghanistan. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 1 September 2022 the Authority affirmed the delegate’s decision. Like the delegate, the Authority found that the applicant is a citizen of Pakistan, not Afghanistan. The Authority found that Pakistan was the relevant receiving country against which the applicant’s claims for protection should be assessed. The Authority was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm if he were returned to Pakistan. The Authority’s relevant reasoning is addressed in greater detail below in the context of the consideration of the applicant’s ground.
JUDICIAL REVIEW APPLICATION
The applicant commenced proceedings in this Court by an application filed on 4 October 2022, within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 31 July 2023, which raises the following ground:
The Second Respondent made a jurisdictional error by failing to assess the Applicant’s claims for protection on the basis that his home country could have been Afghanistan or Pakistan.
In circumstances where the ground is not particularised and, on one view, might be interpreted quite broadly, I asked Counsel for the applicant to confirm at the hearing that the nature of the jurisdictional error asserted is that set out in the written submissions. I summarised the alleged jurisdictional error as an assertion that the Authority showed sufficient doubt in its finding that the applicant is a citizen of Pakistan that it should have applied the ‘what if I am wrong?’ test and proceeded to assess whether the applicant would meet the criteria in s 36(2)(a) and (aa) of the Migration Act if Afghanistan was the receiving country. Counsel for the applicant confirmed that this is the nature of the jurisdictional error alleged.
The evidence before the Court comprises the court book filed by the Minister on 3 March 2023.
IS THE APPLICANT A FAST TRACK APPLICANT?
At the hearing I invited submissions from the parties as to whether the applicant is a ‘fast track applicant’ as defined in s 5 of the Migration Act. A ‘fast track applicant’ is defined as:
(a)a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination; or
(b)a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
It appeared to me that the applicant could not meet the requirements of limb (a) to the definition of ‘fast track applicant’ because he entered Australia in July 2012, outside the range of dates specified in subparagraph (a)(i) of the definition. I did not identify anything in the parties’ submissions or in the court book to indicate whether the applicant met limb (b) of the definition. I considered that this was an important issue that needed to be addressed because if the applicant is not a ‘fast track applicant’ then the Authority could not have had jurisdiction in this matter.
Counsel for the applicant was able to confirm at the hearing that he had considered this issue ahead of the hearing and submitted that the applicant met limb (b) of the definition of ‘fast track applicant’. Counsel for the applicant referred the Court to the legislative instrument identified as Migration (Fast Track Applicant Class – Temporary Protection and Safe Haven Enterprise Visa Holders) Instrument 2019 (LIN 19/007). This instrument relevantly provides in s 6(1) that:
A person is a fast track applicant if:
(a) either:
(i)the person holds a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa; or
(ii)the last substantive visa held by the person was a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa; and
(b) the person makes an application, on or after 2 April 2019, for a protection visa.
I am satisfied that the applicant is a ‘fast track applicant’ as described in LIN 19/007 and therefore meets limb (b) of the definition of ‘fast track applicant’ in s 5 of the Migration Act. He applied for his subsequent protection visa on 9 April 2019, that is, after 2 April 2019 and, at that time, he was the holder of a Subclass 785 (Temporary Protection) visa. I thank Counsel for the applicant for his assistance in addressing the Court’s questions in relation to this issue.
WAS THE AUTHORITY REQUIRED TO CONSIDER WHETHER THE APPLICANT WOULD MEET THE CRITERIA FOR A PROTECTION VISA ON THE BASIS THAT AFGHANISTAN WAS THE RECEIVING COUNTRY?
The applicant’s ground alleges that the Authority constructively failed to exercise its jurisdiction by failing to consider the applicant’s claims on the basis that his receiving country might have been Afghanistan, and not Pakistan. In the circumstances of the present case, resolving this ground will require the Court to determine whether the Authority reasons show that the Authority had any real doubt about its finding that the applicant is a citizen of Pakistan.
Relevant principles
For the most part, there is no material dispute between the parties as to the principles relevant to the resolution of this ground, and rather, the dispute lies in the application of the relevant principles to the facts of this case.
The principle referred to by the parties that is most relevant to the resolution of this matter is that a decision-maker may be required to take into account the possibility that past events occurred, even if the decision-maker believes that it is more likely than not that the events did not occur: see, for example, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 at [62]; AXD21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 912 (AXD21) at [32], [33], [36].
This principle was explained by Jackson J in AXD21 at [32]-[33] in the following way:
32.In assessing that probability [of a future event occurring], the decision‑maker will ordinarily need to determine whether claimed past events occurred. If a person was persecuted in the past for a relevant reason, that may increase the probability that the person will be persecuted for that reason in the future. And it is relevant that the probability is assessed as part of the fact-finding function of an administrative decision‑maker, rather than a court of law. A court is generally required to find whether past events occurred on the balance of probabilities and, if it finds that they did not, to disregard the possibility that they did. But an administrative decision‑maker may be required to take into account the possibility that the events occurred, despite having determined that it is more likely than not that they did not occur. If so, and if the decision‑maker fails to take the possibility into account, that may be a jurisdictional error.
33.In general, the question whether the possibility should have been taken into account depends on the decision‑maker’s own reasons. If a fair reading of those reasons as a whole shows that the decision‑maker had no real doubt that the events did not occur, then omitting to go on to consider the possibility that they did occur will not be an error. In contrast, if the decision‑maker’s view is that it is only slightly more likely than not that they did not occur, it may be required to consider the possibility that they did occur.
The principle, which is often referred to as the ‘what if I am wrong?’ test, is ordinarily applied in relation to an assessment of whether past events have occurred. The applicant in the present case seeks to apply the principle to the determination of the receiving country on the basis that the receiving country is ‘baked into’ the criteria in s 36(2)(a) and (aa) of the Migration Act. Although the Minister’s submissions were less clear than they might have been, I do not understand the Minister to be submitting that the principle cannot apply to the determination of the receiving country. Nevertheless, in circumstances where neither party has referred to any authority that explicitly applies the ‘what if I am wrong?’ test to the determination of the receiving country or made detailed submissions on the issue, and in the context of the findings I have made below, if there is any outstanding question as to whether the ‘what if I am wrong?’ test applies to the determination of the receiving country, I do not resolve it in the present case. Rather, I am prepared to proceed on the assumption that the ‘what if I am wrong?’ test can apply to the determination of the receiving country, without actually making any finding to that effect.
Was the Authority’s finding that the applicant is a citizen of Pakistan the subject of any real doubt?
The following observations and findings of the Authority in relation to the documents provided by the applicant in support of his claimed identity and nationality were relevant to the Authority’s finding that the applicant is a citizen of Pakistan:
(a)The Authority gave ‘some weight’ to the applicant’s wife’s Afghan Citizen Proof of Registration card (Proof of Registration card), noting the security features on the card and that it was issued by the National Database and Registration Authority (NADRA) in Pakistan. The Authority noted that the Department of Foreign Affairs and Trade considered documents issued by NADRA to be ‘generally reliable’: at [16]. The Authority found it ‘concerning’ that the applicant told the delegate his wife was undocumented, but could then produce the Proof of Registration card, issued in 2015, when asked: at [17]. The Authority accepted that the Proof of Registration card supported a finding that the applicant’s wife is a citizen of Afghanistan but did not indicate that the applicant was also an Afghan refugee: at [18]. Later in its reasons, the Authority expressed ‘concern’ that the applicant maintained throughout the protection visa interview that his wife was undocumented despite the Proof of Registration card being dated 2015. The Authority was also ‘concerned’ at the applicant’s claim that he was undocumented as he claimed to have the same Afghan refugee status as his wife and it is apparent that Proof of Registration cards had been issued to Afghan refugee since 2007. However, the Authority also acknowledged country information that advises that many Afghan refugees remain undocumented in Pakistan and overall found the Proof of Registration card to weigh in favour of the applicant’s claim: at [39].
(b)The Authority gave ‘little weight’ to the applicant’s ‘Attestation of National Driving Licence’ and taskera, noting the unsophisticated security features on the documents: at [21].
(c)The Authority gave ‘some weight’ to the applicant’s marriage certificate, notwithstanding the paucity of security features, because the document was evidently contemporaneous with the applicant’s and his wife’s marriage and included more comprehensive information than the other documents: at [24].
(d)The Authority accepted that some of the documentary evidence provided by the applicant supported his claim, but considered that overall the documents ‘did not overcome [its] concerns’ about the bank accounts (expanded on below) or other concerns: at [41].
(e)The Authority had regard to information that the applicant had transferred money before 2019 to bank accounts in Pakistan in his wife and his brother’s names and country information suggesting that Afghan refugees who were not Pakistani citizens were unable to open bank accounts at that time. The Authority considered that the information that the applicant sent money to bank accounts in Pakistan in his wife and brother’s names ‘significantly damages’ the claim that they were Afghan refugees, and the bank accounts in their names indicated that they are Pakistani citizens: at [28]-[29].
(f)The Authority accepted that the applicant’s explanation that his sisters had obtained Pakistani citizenship through their marriages was supported by country information, and did not consider that their Pakistani citizenship damaged the applicant’s claims to be an Afghan citizen or otherwise was determinative of the applicant’s citizenship: at [33].
(g)The Authority considered the Pakistani citizenship of the applicant’s brother to be a ‘significant factor’. The Authority noted that country information was unequivocal that a foreign man cannot attain Pakistani citizenship through marriage and there is no other apparent avenue for Afghan refugees to be granted citizenship. The Authority did not accept that the applicant’s brother had obtained Pakistani citizenship through marriage and it was not satisfied that he could have obtained Pakistani citizenship by other means: at [34]. Later in its reasons, the Authority expressed ‘significant concerns’ about the applicant’s account of his brother’s circumstances and in particular expressed ‘significant concern’ that the explanation the applicant gave for his brother’s ability to obtain Pakistani citizenship ran counter to the reliable country information before the Authority. The Authority noted that the information before it that indicated the applicant’s brother is a Pakistani citizen, but did not accept that the applicant’s brother obtained this citizenship through marriage: at [42]. The Authority concluded that the applicant’s brother is a Pakistani citizen born in Pakistan and that this ‘significantly damages the applicant’s claim he and his siblings were born in Afghanistan’: at [43].
(h)The Authority considered that the information before it, particularly the information about the bank accounts and the applicant’s statement at the 2022 protection visa interview that his brother is a Pakistani citizen, ‘significantly damages’ the applicant’s claims regarding his own nationality: at [35].
(i)The Authority found it ‘concerning’ that in his 2013 protection visa application, the applicant described each of his siblings as citizens of Afghanistan, whereas he now advises they are Pakistani citizens. The Authority considered it was ‘difficult to accept as plausible’ that all of his sisters had married and changed their citizenship status in the nine or 10 years since he provided the original information. The Authority also noted that the applicant had indicated in 2013 that his brother was a resident in Qatar, but has since indicated that his brother travelled to Qatar on a Pakistani passport which would indicate he was a Pakistani citizen in 2013 when the applicant lodged his protection visa application. These matters caused the Authority to be ‘concerned’ that the information given by the applicant in 2013 was not reliable: at [36].
(j)The Authority had ‘difficulty accepting’ that the applicant’s brother and mother would not assist him by providing copies of documents requested by the delegate that may have supported the applicant’s claims and was ‘concerned’ that the applicant had not provided the travel documents requested because they did not support his claims: at [37]. Later in its reasons, the Authority repeated that the failure to provide the requested documents caused the Authority to ‘doubt they would support his claims about the family background, places of birth and citizenship’: at [44].
(k)The Authority took into account as supporting the applicant’s claim to be a citizen of Afghanistan that the applicant had consistently maintained this claim since his arrival in Australia. However, the significantly different information that the applicant gave in his 2013 protection visa application about the citizenship status of his siblings to what he subsequently gave caused the Authority to be ‘concerned this casts some doubt on the reliability of his past account of his and his family’s circumstances’: at [38].
The Authority then summarised its concerns at [46] and expressed its conclusions about the applicant’s citizenship at [47]. These paragraphs read (emphasis added):
46.I have outlined my concerns about the applicant’s account of matters relating to his brother’s citizenship and that this leads me to doubt his claim he and his siblings were born in Afghanistan as Afghan citizens. This is compounded by my concerns that his wife and brother have bank accounts in Pakistan which further points to them being citizens of Pakistan and casts doubt on the claims he and his wife and family lived in Pakistan as Afghan refugees. I am concerned the applicant has not provided documents requested by the delegate and that he has not done so because they do not support his claims. I have taken into account the applicant’s own evidence and the documentary evidence he has provided and that the first delegate was satisfied the applicant had demonstrated sufficient knowledge of the Paktia region in Afghanistan, but these do not overcome my concerns.
47.I do not accept the applicant was born in Afghanistan. I do not accept he is a citizen of Afghanistan. I do not accept that he lived in Pakistan as an Afghan refugee. I find the applicant is a citizen of Pakistan and that Pakistan is the receiving country for the purpose of this review.
The crux of the applicant’s submission is that the Authority itself accepted that there was evidence going both ways in regard to the applicant’s citizenship and the identification of the receiving country. The Authority expressed doubts over the applicant’s claim to Afghani citizenship and its finding that he is a citizen of Pakistan must be read in the light of its earlier expressed doubt. The applicant submitted that this was not a case in which the Authority could be said to have had no real doubt and, in these circumstances, it was required to assess the applicant’s claims for protection on the basis that he might be a citizen of Afghanistan. In oral submissions, Counsel for the applicant highlighted the Authority’s use of the word ‘doubt’, and I have reproduced in the summary of its relevant findings above those matters about which the Authority expressed ‘doubt’. Counsel for the applicant also noted the acceptance of the applicant’s wife’s Proof of Registration card as a document that weighs in favour of the applicant’s claims, and the conflicting evidence about the applicant’s wife being able to open a bank account, which the Authority identified as pointing to the opposite direction. Counsel for the applicant submitted that the Authority never resolved the conflict between the Proof of Registration card on the one hand, which indicated the applicant’s wife is an Afghan citizen, and the fact that she opened a bank account, which indicated she is a Pakistani citizen. Counsel for the applicant also highlighted that the Authority accepted that the marriage certificate was evidence in the applicant’s favour. Counsel for the applicant submitted that the finding at [47] has to be read in the light of the foregoing, which showed real doubt in the Authority’s findings.
The Minister submitted that the Authority made very clear findings at [47] that the applicant is a citizen of Pakistan and Pakistan was the receiving country for the purposes of the review. The Minister submitted that the Authority used language in its conclusion that demonstrated it had no real doubt that its findings were correct and therefore the Authority was not required to ask ‘what if I’m wrong?’ and was not required to consider the applicant’s claims on the basis that Afghanistan may be the receiving country.
In the present case, I am satisfied that the Authority showed no real doubt in its finding that the applicant is a citizen of Pakistan and that Pakistan was the receiving country for the purposes of the review.
The Authority’s finding at [47] is expressed conclusively and the wording used in that paragraph does not admit of any meaningful doubt in its finding. Even when read with its earlier paragraphs, I cannot meaningfully read any doubt into the Authority’s finding.
The conclusion expressed at [47] of the Authority reasons was a conclusion reached taking into account the evidence as a whole. The Authority conducted a careful and balanced evaluation of the evidence before it. It appropriately acknowledged that some of the evidence supported the applicant’s claims. However, the simple existence and acknowledgement of evidence that might support a conclusion other than the one the Authority reached does not in and of itself mean that the Authority had any real doubt about its conclusion based on its assessment of the evidence as a whole.
The ‘doubt’ and ‘concern’ expressed by the Authority throughout its reasons is properly understood as doubt and concern about the applicant’s evidence and whether it supported his claim to be an Afghan citizen, rather than doubt about the Authority’s conclusion that the applicant is a citizen of Pakistan.
A decision-maker may ‘doubt’ that an individual item of evidence advanced by an applicant in support of his or her claim in fact supports the claim, without conclusively rejecting the claim on the basis of that individual item of evidence alone, while at the same time confidently rejecting the applicant’s claim taking into account the totality of the evidence before it, even if some of the evidence might be supportive of the claim.
While I accept that the Authority did not ultimately resolve the significance of the conflicting evidence about the applicant’s wife’s citizenship, it was not required to do so. This is because the primary question for the Authority was the citizenship of the applicant, not his wife. Also, the Authority expressly found at [18] that the applicant’s wife’s Proof of Registration card did not show that the applicant himself is an Afghan refugee. Further, the Authority clearly considered the impact of the evidence that might be seen as favourable to the applicant and expressly found that that evidence did not overcome the more significant concerns it had about other aspects of the applicant’s evidence. This was an acceptable process of reasoning for the Authority to adopt in determining the receiving country for the purposes of the review.
In this regard, I acknowledge but do not accept the submission advanced by Counsel for the applicant that the Authority’s approach prior to [47] of its reasons, namely raising concerns and weighing items of evidence against each other, is not consistent with a finding made without any real doubt, particularly in circumstances where the Authority is not exercising a discretion or weighing competing claims against one another. Rather, it was open to the Authority to consider each individual item of evidence separately and, where it had concerns about any particular evidence, express those concerns, before then considering the evidence collectively. If, considering the evidence in its totality, the Authority had no real doubt about its finding that the applicant is a citizen of Pakistan and Pakistan is the receiving country, it was open to the Authority to proceed on that basis. That is what happened in the present case.
In circumstances where the Authority’s finding that the applicant is a citizen of Pakistan and Pakistan is the receiving country was not the subject of any real doubt, the Authority was not under any obligation to consider the applicant’s claims on the basis that Afghanistan is the receiving country. The Authority’s failure to consider whether the applicant would face the requisite risk of harm in Afghanistan to engage Australia’s protection obligations does not therefore amount to jurisdictional error.
CONCLUSION
The applicant’s ground does not establish jurisdictional error in the Authority decision and the application to this Court is therefore dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 August 2023
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