DIV16 v Minister for Immigration
[2018] FCCA 3349
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3349 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to further amend application to include ground that Authority fell into error by failing to consider the “reasonably foreseeable future” – application opposed based on lateness of application, lack of supporting affidavit and merit – ground sufficiently arguable to warrant leave to raise – leave granted to file further amended application. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 473CA |
| Cases cited: CEA16 v Minister for Immigration & Border Protection [2017] FCCA 2444 |
| Applicant: | DIV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3073 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 July 2018 |
| Date of Last Submission: | 17 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The applicant has leave to file a further amended application in the form handed to the Court on 17 July 2018 and dated 3 July 2018.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY | |
| DIV16 | |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority dated 18 October 2016. The Authority affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a protection visa.
Background
The applicant is a citizen of Pakistan who arrived in Australia by boat as an unauthorised maritime arrival on 25 October 2012.
On 30 December 2015 the applicant applied for a Temporary Protection (subclass 785) visa, a type of protection visa. The applicant’s claims for protection were made on the basis of his being an identifiable Shia Muslim from Parachinar in the Kurram Agency of the Federally Administered Tribal Areas (FATA) of Pakistan. He feared being kidnapped or killed by the Taliban and other extremist organisations for reason of his religion and his tribal group, being the Bangash tribe, while asserting there was no state protection available in Pakistan and he could not relocate as the situation is “going worse”. He also claimed that he would also be targeted because he had lived in a western country and applied for asylum in Australia.
In a decision dated 11 August 2016 the delegate refused to grant the applicant a protection visa as she was not satisfied the applicant faced a real chance of persecution or there was a real risk he would suffer significant harm in Lahore, Pakistan where it was reasonable for the applicant to relocate.
The decision was referred to the Authority for review in accordance with s.473CA of the Act.
On 2 September 2016 a representative of the applicant forwarded lengthy submissions and country information to the Authority (76 pages) and made a request for access to the material referred to the Authority by the delegate. The applicant was told that the submission did not comply with the Authority’s practice direction and was given an opportunity to condense his submissions. On 10 October 2016, the representative sent the Authority revised submissions, largely consisting of links to various sources of information relevant to the applicant’s claims. On 18 October 2016 the Authority made a decision to affirm the delegate’s decision not to grant the applicant a protection visa.
Authority’s decision
On the basis of the country information before it, the Authority accepted that Sunni militant groups target Shias throughout Pakistan including Shias in the Kurram Agency, however it was “mindful” of the information that Pakistani authorities had taken steps to protect Shias throughout Pakistan and such information outweighed the applicant’s claim that the government did nothing to protect Shias. It also noted a Department of Foreign Affairs and Trade (DFAT) assessment that there is a low level of sectarian violence and generalised violence in the FATA and the Kurram Agency had been “de-notified”[1], was safe for return and was under the control of the authorities.
[1] Office for the Coordination of Humanitarian Affairs (OHCA), Pakistan: FATA Return Weekly Snapshot (from 13 to 19 May 2016), 19 May 2016.
In respect of the information submitted by the applicant, the Authority noted that the attacks he referred to had occurred largely between 2008 and 2011, though there were also two attacks in 2014 and one in 2015. It accepted there was an increase in militancy related incidents in the latter half of 2015 and that, as a Shia, the applicant would have an imputed political opinion opposed to the Taliban. The Authority noted that country information suggested that the Bangash and Turi tribes are two separate tribes, that members of the Bangash tribe are considered distinguishable from other Pashtun tribes, the applicant’s name was common to both Sunni and Shia Muslims and that approximately 40% of the Bangash tribe population are Shia.
The Authority accepted that the applicant was a Pashtun Shia of the Bangash tribe from the Kurram agency. It accepted that there had been past violence against Shias, and that the applicant had experienced difficulty in travelling due to roadblocks though he was not hindered from travelling to attend to his education in Rawalpindi. The Authority accepted that militant groups, including the Taliban, targeted the Kurram Agency due to the high number of Turi tribesmen that live there, most of whom are Shias. However, it found that the most recent country information from 2014, 2015 and 2016 demonstrated that the Pakistani authorities had taken significant steps to reduce the frequency of violence in the Kurram Agency.
On the balance of the evidence, the Authority considered that there was only a remote or speculative chance that the applicant would face serious harm on return to Pakistan from anti-Shia militants or the Pakistani authorities singularly or cumulatively, because of his religion, age, membership of the Bangash tribe, his being a Pashtun Shia Muslim or being imputed with an anti-Taliban political opinion.
The Authority briefly dealt with the applicant’s claims regarding his being a returnee from the West and noted the applicant had departed Pakistan lawfully, there was no information to suggest he was suspected of committing any offence and, even if he were questioned on arrival, this would not amount to serious harm.
For those reasons, the Authority found that the applicant did not satisfy the criterion in sub-s.36(2)(a) of the Act and, for the same reasons, that the applicant did not meet the complementary protection criteria in sub-s.36(2)(aa) of the Act.
The applicant now seeks judicial review of the Authority’s decision.
The course of these proceedings
The applicant lodged his application for judicial review of the Authority’s decision in this Court on 8 November 2016. By consent, the Court delayed the hearing of the matter to await the outcome of an application to be heard by Judge Driver that dealt with the issues initially raised by the applicant. His Honour delivered judgment in that matter on 22 June 2017, upholding the challenge to the decision of the Authority on the grounds of unreasonableness: DZU16 v Minister for Immigration & Border Protection (2017) 321 FLR 306. However, the Minister appealed from that decision and, given the importance of the issue, this matter was again delayed pending the outcome of that appeal. The Full Court of the Federal Court gave judgment in that appeal on 12 March 2018: Minister for Immigration & Border Protection v DZU16 (2018) 253 FCR 526. This matter was then set down for hearing.
Ultimately, the applicant conceded that the grounds (which had been amended by this stage) were untenable in light of both DZU16 and DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12. He did not, however, abandon the proceedings and, instead, sought leave to rely on a further amended application dated 17 July 2018 in which all previous grounds were abandoned and replaced with a single ground. The Minister opposed the application to amend on three bases:
a)the application was made extremely late in the proceedings, being served on the Minister as a proposed application on 2 July 2018, and not by way of application in a case;
b)there is no affidavit in support explaining why the applicant did not raise the new ground earlier and in circumstances where the amended application filed on 23 March 2018 was filed subsequent to the decisions of DGZ16 and DZU16, handed down on 1 February 2018 and 12 March 2018 respectively, the judgments which the applicant concedes render those grounds untenable; and
c)the sole ground in the further amended application lacks merit in any event.
At hearing I heard full argument on the proposed new ground but reserved my decision as to whether leave would be granted to the applicant to rely on it. Although no express explanation was given for such a late amendment, and the new ground could have been raised at any time during the course of the proceedings, I am satisfied that there is a reasonable basis for the delay. As I have explained, the applicant in this case originally relied on an issue that was to be determined first by another judge of this Court. It was appropriate, in my view, to await the outcome of those other proceedings in order to save the Court’s resources (and those of the parties) by avoiding a multiplicity of cases dealing with the same issue. When the issue ultimately became untenable it was obvious that there needed to be a new ground or the proceedings had to be abandoned. As will become apparent, the new ground is sufficiently arguable to warrant leave and the Minister was able to respond to it fully.
The applicant will be granted leave to file the further amended application.
Consideration
The applicant contends that the Authority fell into error by failing to ask itself or consider the “reasonably foreseeable future” when determining if the applicant had a well-founded fear of persecution or a real risk of significant harm. Although he accepted that the Authority expressly made a finding about the “reasonably foreseeable future”, the applicant argued that the Authority did not, in fact, consider that issue. Rather, the Authority’s decision was based solely on the circumstances as they stood at the time of the decision and did not include, as it should have, consideration of the likelihood of whether those circumstances might deteriorate.
It is trite that a failure to have regard to the chance of harm in the reasonably foreseeable future may amount to jurisdictional error and the Authority must not foreclose reasonable speculation of a chance of persecution emerging when considering the entirety of the material before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293-295.
In CPE15 v Minister for Immigration & Border Protection [2017] FCA 591, Mortimer explained the future-looking test at [59]-[60]:
[59] In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality…To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable” ...
[60] The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. …
(Citations omitted)
Having summarised the applicant’s claims, and considered the country information concerning the relevant area of Pakistan, the Authority stated its conclusions about the risk of harm faced there by the applicant at [19]. It stated, relevantly:
… On the balance of the evidence before me, I consider there to be only a remote or speculative chance and therefore not a real chance the applicant will face serious harm from the LEJ, SSP, the Taliban, daesh, other anti-Shia militants and/or the Pakistan authorities singularly or cumulatively because of his age, he is a member of the Bangash tribe, he is a Pashtun Shia Muslim, he has an imputed anti-Taliban political opinion and/or he comes from the named agency, now or in the reasonably foreseeable future, if he returns to Pakistan.
(Emphasis in original)
There are several important matters to note about this statement. First, the Authority’s conclusions were arrived at “on the balance of the evidence”. This indicates that the Authority was aware of, and had taken into account, the fact that the material before it went in different directions: some supporting the applicant’s contention that things were deteriorating and others supporting the view, ultimately adopted by it, that they were not.
The Authority said that it had referred to the information before the delegate. That material showed that the circumstances were not necessarily stable in Pakistan. It included information that Pakistan “continues” to face security threats, but that there had been a substantial reduction of the level of violence throughout the country, a “trend” that had increased over the course of 2015.
Secondly, the conclusion in this statement is addressed to the future. Not only does a finding about “risk” and “chance” necessarily involve the future, but the future tense (“will”) makes it pellucid that that was what the Authority was addressing.
Thirdly, as accepted by the applicant, the Authority used the very words which it is now contended that it overlooked: “now or in the reasonably foreseeable future.”
I accept the submission that using these words is not always decisive in determining whether the correct test is applied; however, there is no question that it supports a conclusion that the proper test was applied: CEA16 v Minister for Immigration & Border Protection [2017] FCCA 2444 at [34].
There are other indications that support the view that the Authority adopted the correct approach. In dealing with the question of the applicant’s return to Pakistan from a western country, the Authority used both the conditional (“would”: [21] – [23]) and the future (“will”: [23]). As it did when dealing with the applicant’s broader claim in [19], the Authority also expressed its conclusion about this claim by reference to both the present and “the reasonably foreseeable future”: [24].
The applicant’s only real attempt to answer all of these indications was to point to various references in the country information before the Authority to the possible deterioration in the security situation in Pakistan.
I am not satisfied that the existence of that information overcomes the clear indications in the Authority’s reasons that it did engage in the necessary forward-looking test. Ultimately, it arrived at its decision because it found that, “on the balance of the evidence” the situation did not admit of a real chance of serious or significant harm now, or in the reasonably foreseeable future. In other words, it took into account the evidence that suggested that the situation may change for the worse, but preferred the information that suggested otherwise. The weight given to the information before the Authority was a matter for it: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11], [13].
Although I have found that the new ground was sufficiently arguable to warrant leave to raise it in the circumstances of these proceedings, I find that it has not been made out and must be rejected.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Appeal
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