DMF19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 699
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DMF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 699
File number(s): ADG 330 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 10 August 2023 Catchwords: MIGRATION – Judicial Review Application –Immigration Assessment Authority decision – application for Safe Haven Enterprise Visa – Immigration Assessment Authority found applicant able to relocate within Pakistan, failed to meet refugee criteria and failed to meet complementary protection criteria – bare assertion of jurisdictional error – no grounds of jurisdictional error established – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 473CB, 474, 476 Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 17 Date of last submission/s: 31 July 2023 Date of hearing: 31 July 2023 Place: Perth (by video-link to Adelaide and Sydney)
Applicant: In person Counsel for the First Respondent: Mr T Goodwin Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
ADG 330 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DMF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
10 August 2023
THE COURT ORDERS THAT:
1.The originating application filed on 11 September 2019 be 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 LUCEV
ORIGINATING APPLICATION AND LITIGATION HISTORY
Before the Court is an application for judicial review (“Judicial Review Application”) filed by the applicant, DMF19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 16 August 2019. The Authority Decision affirmed a decision of a delegate (“Delegate's Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) on 22 July 2019 not to grant DMF19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
Given that the Judicial Review Application has taken four years to come to final hearing it is appropriate to briefly explain its litigation history, which is as follows:
(a)the Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court) on 11 September 2019 and was accompanied by DMF19’s affidavit affirmed the same day (“DMF19 Affidavit”) in which he:
(i)affirms the Delegate refused to grant him a SHE Visa on 22 July 2019;
(ii)affirms that the Authority upheld the Delegate's Decision on 16 August 2019; and
(iii)annexes a copy of the Authority Decision;
(b)on 23 September 2019 the Minister filed a Response;
(c)on 24 October 2019 orders were made by a Registrar of this Court (“October 2019 Orders”), by consent, for:
(i)the filing of the Court Book (“CB”) by 20 December 2019;
(ii)the filing of any amended application and further materials by the applicant by 28 February 2020;
(iii)the Judicial Review Application to be listed for hearing on a date to be advised;
(iv)the matter to be listed for a directions hearing on 18 June 2021; and
(v)DMF19 and the Minister to file and serve outlines of submission 28 and 14 days respectively prior to the final hearing;
(d)on 8 January 2020 a notice of adjournment was emailed to the parties by a Client Services Officer in the Adelaide Registry notifying the parties that the listing for 18 June 2021 had been vacated and that the proceedings were adjourned to a date to be fixed;
(e)by 8 January 2020 no documents had been filed, but the CB was filed on 17 January 2020;
(f)for almost three years, for reasons which are not apparent from the file, nothing happened, until in October 2022 the Judicial Review Application was docketed to the now presiding Judge in the Perth Registry of the Court, and a directions hearing was then listed for 21 November 2022;
(g)at the directions hearing on 21 November 2022:
(i)DMF19 was assisted by an interpreter;
(ii)the Court explained to DMF19 the nature of jurisdictional error, the requirement for the Authority Decision to be affected by material jurisdictional error, and that the Court did not engage in merits review of the Authority Decision; and
(iii)the Court made orders (“November 2022 Orders”) including the following:
(A)DMF19 file and serve any amended originating application, further affidavits, and an outline of submissions by 2 June 2023;
(B)the Minister file and serve any amended response, affidavits in reply, and an outline of submissions by 23 June 2023; and
(C)the Judicial Review Application be listed for final hearing by video-link on 31 July 2023 before the now presiding Judge;
(h)DMF19 filed no amended originating application, further affidavits or an outline of submissions by 2 June 2023, or at all;
(i)the Minister filed an outline of submissions on 13 June 2023; and
(j)the final hearing was held by video-link on 31 July 2023, and the Court again explained to DMF19 the nature of jurisdictional error, the requirement for the Authority Decision to be affected by material jurisdictional error, and that the Court did not engage in merits review of the Authority Decision.
The CB was marked as Exhibit 1 in the proceedings. The Authority Decision appears at CB 237-244.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the material referred to by the Secretary under s 473CB of the Migration Act however no further information was obtained or received by the Authority: CB 238 at [3]-[4];
(b)considered both the refugee criteria and the complementary protection criteria: CB 239 at [7], 242 at [23], 242-243 at [24], 243 at [25] and 244 at [33]-[34] (including reference therein to relevant provisions of the Migration Act: ss 5H, 5J and 36);
(c)noted that DMF19’s protection claims could be summarised as follows: CB 238 at [5]:
•He is a Pakistani national of Pashtun ethnicity, Turi tribe membership and Shia Muslim religion who was born and resided in … [place name omitted], Kurram Agency, Khyber Pakhtunkhwa, Pakistan prior to his journey to Australia.
•He worked as a taxi driver in … [place name omitted] and there were bomb blasts everywhere. One time, these blasts damaged his car a little. His father advised him to stop driving due to the dangers from bomb blasts. Access to medical treatment was hindered due to these dangers. The Taliban was targeting Shias. He stopped driving from around 2008.
•The situation in … [place name omitted] deteriorated when he left in 2013.
•He fears being harmed as a Shia Muslim from … [place name omitted] area. He fears harm by the Taliban and even the Pakistani government.
•He is unable to safely or reasonably relocate to another part of Pakistan for various reasons.
(d)determined that DMF19 is a national of Pakistan and would be readily identifiable as a Shia Turi Pashtun in Pakistan: CB 239 at [8]-[9];
(e)accepted that DMF19 had provided a credible account of his employment and experiences as a taxi driver in his home town in the Kurram Agency until 2008 when he stopped driving due to dangers on the roads, and whilst it accepted that he may be known to some former regular customers if he returned to his home town, did not accept that he would be more broadly readily identifiable as a former taxi driver, and was not satisfied that he would be of any adverse interest to former Sunni customers should he return to Pakistan: CB 239-240 at [10];
(f)accepted that as a consequence of the adverse and violent security situation in his home town during the time that he was a taxi driver that he had been exposed to insecurity, including bomb blasts, and that on one occasion, his car was damaged: CB 240 at [11];
(g)based on DFAT information, accepted that the situation for Shias in his home town had again deteriorated in 2017, but that since then the situation with respect to sectarian violence, both in his home town and in Pakistan had improved, and noted that there was a trend of decreased reports of attacks against Turis in 2018, although DFAT assessed that Turis in the Kurram Agency still faced a moderate risk of sectarian violence from militant groups due to their Shia faith, noting that moderate risk was defined by DFAT as sufficient incidents to suggest a pattern of behaviour: CB 240-241 at [12]-[13];
(h)like the Delegate, was not satisfied that the real chance of persecution related to all areas of Pakistan, noting that although DMF19 would be recognisable in another city as a Shia Turi Pashtun from his home town, the country information indicated that there were large Shia communities in urban centres across Pakistan with large numbers of internal migrants from all parts of the country, and ethnically and religiously diverse populations, offering a degree of anonymity, and that in the cities Shia and Sunni communities tended to be more integrated, and that Shias, particularly in Islamabad, faced a low risk of sectarian violence: CB 241 at [14]-[16];
(i)found that country information indicated that Shias have been able to practise their faith freely in Islamabad: CB 241 at [17];
(j)found that country information indicated that the Pakistani government had, for an extended period, taken strong measures to combat sectarian and other violence across Pakistan, and as a result that there had been a declining trend of attacks on Shias across Pakistan, and that a nine year downward trend in terrorist attacks in Pakistan had continued in 2018, and that this had been credited to military operations and the National Action Plan in Pakistan: CB 242 at [18];
(k)noted that DMF19’s parents and younger sister were currently residing in Islamabad where his mother was receiving medical treatment, and that he had not claimed that his family members had faced any problems during their stay in Islamabad: CB 242 at [20];
(l)concluded that given the secure conditions for Shias in Islamabad, together with DMF19’s history, profile and experiences, that it was not satisfied that DMF19 would in the reasonably foreseeable future, face a real chance of any harm in Islamabad, and was therefore not satisfied that the applicant had a well-founded fear of persecution in Pakistan: CB 242 at [21]-[22];
(m)found that despite DMF19’s claims DMF19 did not meet the definition of a refugee: CB 242 at [23];
(n)in considering whether there was a real risk of significant harm if DMF19 were to return to Pakistan, and in particular whether it was reasonable for DMF19 to relocate to another area of Pakistan:
(i)accepted that there was a real risk of significant harm to DMF19 in Kurram Agency, but was satisfied that it would be reasonable for DMF19 to relocate to Islamabad where there was not a real risk of significant harm to him: CB 243 at [26]-[27];
(ii)in relation to DMF19’s claims that he was not educated and would not secure a job or be able to settle in another part of Pakistan, noted that despite his education, and lack of familiarity with Australia, in Australia he had obtained employment at a chicken factory for several years, as well as for Uber for about one and a half years, and had sent money back to Pakistan multiple times to his family, and had managed to secure accommodation on multiple occasions whilst in Australia to support himself, and had thus demonstrated a capacity to obtain housing and employment whilst in Australia: CB 243 at [28];
(iii)in relation to DMF19’ claim that his language skills were not good, cited DFAT information which indicated that Turis tended to relocate to other known Shia areas “irrespective of the language barriers they may face”, and that their preferred relocation options included Islamabad: CB 243 at [29];
(iv)that Islamabad provided greater access to employment, education and health care services than anywhere else in Pakistan, and that DMF19’s three family members had sourced and rented a unit in Islamabad where his mother was undergoing medical treatment, and that DMF19 had confirmed he had no dependants or other evident obstacles to prevent him relocating: CB 244 at [30];
(v)that DMF19 was able to apply online to replace an apparently lost national identity card for Pakistan: CB 244 at [31]; and
(vi)there were ongoing stable security conditions in Islamabad, and an overall positive assessment in relation to the security situation there in recent times in relation to both sectarian and border security issues: CB 244 at [32];
(o)having considered the complementary protection provisions in the Migration Act: CB 242 at [24]-[34], determined that even assuming a real risk of significant harm in DMF19’s home town, that there would be no real risk of significant harm in Islamabad and that it was reasonable for DMF19 to relocate to Islamabad: CB 243 at [26], and DMF19 did not therefore meet the criteria for complementary protection: CB 244 at [33]-[34]; and
(p)affirmed the Delegate's Decision not to grant DMF19 a SHE Visa: CB 244.
JUDICIAL REVIEW APPLICATION
DMF19’s Ground of Review
DMF19’s sole ground of review as contained in the originating application filed on 11 September 2019 is that:
The Immigration Assessment Authority made a jurisdictional error in my case.
DMF19’s Submissions
In relation to the October 2019 Orders the Court notes that they provided for the filing of an amended application and further materials by DMF19 by 28 February 2020, and that this order did not change notwithstanding that, administratively (that is without a directions hearing before, or orders from, a Judge or a Registrar) the Adelaide Registry on 8 January 2020 vacated the directions hearing listed for 18 June 2021 and the proceedings were adjourned to a date to be fixed. Further, the November 2022 Orders were made as a consequence of a directions hearing, in person in Adelaide before the presiding Judge, with the assistance of an interpreter, and at which an explanation was given as to the nature of, and requirement for, material jurisdictional error to be established in the Authority Decision and that the Court did not engage in merits review of the Authority Decision.
DMF19 did not file further written material or submissions pursuant to either the October 2019 Orders or the November 2022 Orders.
At the final hearing on 31 July 2023 the Court again explained to DMF19 the nature of, and requirement for, material jurisdictional error to be established in the Authority Decision and that the Court was not engaged in merits review of the Authority Decision. Having given that explanation the Court, in an endeavour to give DMF19 the best possible opportunity to put a case of jurisdictional error affecting the Authority Decision, the Court then asked DMF19, in various ways, including asking what jurisdictional error affected the Authority Decision, what specific jurisdictional error affected the Authority Decision, and what was “wrong” with the Authority Decision, to explain how the Authority Decision was affected by jurisdictional error.
DMF19’s oral submissions at the final hearing can be summarised as follows:
(a)he had provided material concerning instability in his home village, and since he had provided that material, the situation had become worse (the Court notes that this can only be material provided to the Delegate as no further information or new information was provided to the Authority, and no material was provided to the Court other than the DMF Affidavit which annexed a copy of the Authority Decision);
(b)during this period his father had passed away, and they were going to take him away to hospital, but the roads were blocked because of trouble on the main road from his home village;
(c)he did not have anything specific to say as to why the Authority Decision was wrong;
(d)because he was a Turi Shia from his home village it was impossible for him to relocate within Pakistan;
(e)he could not indicate that there were any “such things” upon which he could rely in his case (this followed one of the further explanations of the categories of jurisdictional error by the Court in the final hearing); and
(f)the biggest problem with relocation was providing identification documents in Islamabad, because the identification documents show his identity, and that in itself provides a risk of harm.
Minister’s Submissions
The Minister’s written and oral submissions can relevantly be summarised as follows:
(a)the ground alleged by DMF19 in his originating application does not identify the nature of jurisdictional error alleged, nor does it impugn any specific part of the Authority Decision;
(b)pursuant to Order 2(a) of the November 2022 Orders DMF19 had the opportunity to file any amended originating application, further affidavits and an outline of submissions by 2 June 2023, but DMF19 did not file any documents. The Minister notes that DMF19 attended the directions hearing held on 21 November 2022 and therefore had ample time to identify any alleged error in the Authority Decision; and
(c)the Authority Decision shows that the Authority carefully considered DMF19’s claims and relevant country information, and the reasons reveal a logical and well-reasoned decision.
CONSIDERATION
Material jurisdictional error required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
No jurisdictional error alleged or particularised
The Court notes that DMF19 was given three opportunities to file material setting out an alleged jurisdictional error in the Authority Decision. The first occasion was as a consequence of the October 2019 Orders, which were made by consent, which permitted DMF19 to file an amended Judicial Review Application and further material by February 2020, but he did not do so. The second occasion was as a consequence of the directions hearing on 21 November 2022 at which DMF19 had the assistance of an interpreter, and at which the November 2022 Orders were made allowing DMF19 to file an amended Judicial Review Application, any further affidavits and an outline of submissions. DMF19 did not file any of those documents. At the 21 November 2022 directions hearing the nature of, and requirement to establish, material jurisdictional error affecting the Authority Decision, was explained to DMF19, and DMF19 was told that the Court did not engage in merits review of the Authority Decision. DMF19 did not file any further documents as a result of the November 2022 Orders. At the final hearing the nature of jurisdictional error, and the requirement to establish material jurisdictional error in the Authority Decision, and that the Court did not engage in merits review of the Authority Decision, were all again explained to DMF19, but DMF19’s submissions did not assert any alleged jurisdictional error, a fact which he frankly, and properly, acknowledged. In the circumstances, the Court is satisfied that DMF19 had adequate opportunity to allege and particularise any alleged jurisdictional error in the Authority Decision: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [31]-[35] per Feutrill J; DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8]-[9] per Colvin J.
Having given both explanation and opportunity to DMF19 to explain what jurisdictional error he alleged affected the Authority Decision, the failure to go beyond the bare assertion of jurisdictional error in ground 1, and the failure to particularise the grounds of review, is sufficient reason to warrant this Court dismissing the Judicial Review Application: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J, citing WZAVW.
It is, in any event, evident from a review of the Authority Decision that the Authority engaged with the claims made by DMF19, and considered country information in relation to those claims, as it was required to do: as to claims, see, for example Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ and Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [47]-[50] per Judge Lucev, and as to country information, see NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ and Minister for Immigration and Citizenship v SZQHH and Another [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523; (2012) 125 ALD 481 at [27] per Rares and Jagot JJ. The Authority considered the country information such that it determined that there was a serious risk of harm if DMF19 were to stay in his home town, but determined that serious risk of harm was not present if he were to relocate within Pakistan, specifically to Islamabad, and in so determining considered the relevant country information, as well as information particular to DMF19’s family (the other three members of which had relocated to Islamabad): CB 240-242 at [11]-[26], and utilised the country information and the conclusions drawn therefrom to find that DMF19 did not require protection as a refugee or under the complementary protection provisions of the Migration Act: CB 242 at [20]-[21] and 243 at [26]. In the circumstances, the Authority Decision was one that was open to it on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248. While DMF19 might not agree with the Authority Decision, that is not indicative of jurisdictional error, and the weight to be afforded to the material before the Authority was a matter for the Authority, and the Court cannot engage in a general review of the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Jurisdictional error otherwise
The Court is cognisant that DMF19 was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error having been made by the Authority: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero at [26] per Judge Lucev. Save for the matters otherwise considered in these Reasons for Judgment, it is not evident to the Court that some other form of possibly arguable legal error, and in particular possibly arguable jurisdictional error, arises in relation to the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that DMF19 has failed to establish jurisdictional error in the Authority Decision. It follows that the Judicial Review Application must be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 August 2023
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