DMV17 v Minister for Immigration

[2018] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 525

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a), 36(2)(aa), 36(2B), 473CB, 473DD

Applicant: DMV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 743 of 2017

Judgment of: Judge Jarrett

Hearing date: 2 March 2018

Date of Last Submission: 2 March 2018

Delivered at: Brisbane

Delivered on: 6 March 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 3 August, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 743 of 2017

DMV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the dated 13 July 2017, affirming a decision of a delegate of the first respondent to refuse the applicant  a Safe Haven Enterprise (Class XE) (Subclass 790) visa. 

2. Despite orders made on 25 September 2017 requiring the applicant to file any written submissions 14 days prior to the hearing nothing has been filed or served.

3. It is difficult to understand from the application for review and the submissions made by the applicant before me why he says that the second respondent’s decision is affected by jurisdictional error.

4. The first respondent contends that the application fails to establish any jurisdictional error and must be dismissed.  The second respondent entered a submitting appearance.

5. The first respondent’s written submissions accurately summarise the background to the present application.  I have drawn from those submissions in what follows. 

6. The applicant is a citizen of Pakistan.  He arrived on Christmas Island as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) on 12 March, 2013.

7. On 21 January, 2016 he was invited to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Class XE) (Subclass 790) visa. On 31 March, 2016 the applicant applied for Safe Haven Enterprise (Class XE) (Subclass 790) visa.

8. On 2 November, 2016 the applicant attended an interview with a delegate of the first respondent to discuss his visa application.  The following day his registered migration agent provided post-interview submissions to the delegate.  The applicant claimed that:

   a)he is a Shia Muslim of Qizilbash ethnicity;

   b)in Pakistan he owned a shop selling construction materials.  Although various Sunni extremist groups had targeted Shia Muslims since the 1990’s, the applicant did not receive any threats until around July/August 2012, when he received a threat letter in his shop.  The letter was pushed under the shop door and it said that the applicant should leave his shop or be killed.  He was frightened, so decided to employ a Sunni Muslim to manage the shop for three months and he did not go to work;

   c)about two weeks after he resumed working in the shop, in October or November 2012, he was going home on his motorbike when shots were fired at him.  He was not hurt and when he arrived home he received an anonymous call threatening him thus: “you Shia infidel, you managed to escape this time but next time you won’t, you must be killed”.  The applicant said some swear words and told the man that his religion was “in the wrong because it was killing innocent people”;

   d)following this, the applicant moved out of the area.  He sold his shop in November, 2012 and moved house.  A couple of weeks after the move, the applicant received another telephone call from an unknown person who stated: “you infidel, you moved from the area and sold your shop, don’t think you are safe, you must be killed regardless of where you go in Pakistan because you are an infidel who has insulted our religion”;

   e)he left Pakistan in January.  He claimed that the Pakistani authorities would know that he had applied for asylum in Australia and could be accused of being a supporter of the west or of being against Islam. 

9. On 30 December, 2016 the delegate refused to grant the applicant the visa.

10. On 9 January, 2017 the decision was referred to the second respondent for review under Part-7AA of the Act.  The applicant’s registered migration agent provided written submissions, a statement from the applicant and further country information to the second respondent on various dates, specifically: 29 January 2017, 9 February 2017, 17 February 2017, 1 March 2017 and 10 April 2017.

11. The second respondent had regard to the material referred by the Secretary under s.473CB of the Act. The second respondent also noted that the applicant’s registered migration agent had provided a number of items of new information to the second respondent. They were:

    a)Submission of 25 January, 2017:

    i)to the extent that the submission addressed the delegate’s findings and contained legal arguments in support of the applicant’s claims, the second respondent considered that this was not new information.  The second respondent considered that the submission contained two media reports of killings of Shia Hazaras in Islamabad in July, 2015 and July, 2016.  The second respondent noted that neither case appeared comparable to the applicant’s circumstances and was not satisfied that there were exceptional circumstances which justified considering this information.  In respect of the reports about the existence of LeJ sleeper cells in Islamabad, the second respondent noted that there was other information considered by the delegate on this issue, and as the second respondent accepted that it was likely that LeJ had sleeper cells in Islamabad, there were no exceptional circumstances which justified considering this new information.  Finally, in relation to the articles about the Qizilbash tribe, the second respondent noted that this information pre-dated the delegate’s decision but considered that the articles were applicable to the applicant’s circumstances (noting that the delegate was unable to locate relevant country information).  Accordingly, the second respondent was satisfied that there were exceptional circumstances which justified considering the information, noting that it was not evident until the delegate’s decision that this was in issue, and further that the articles assisted with the issue of reasonableness of relocation. 

    b)Applicant’s statement dated 8 February, 2017:

    i)To the extent that the statement identified some factual errors in the delegate’s decision and highlighted some claims before the delegate, the second respondent did not consider this to be new information.  However, the second respondent noted that the statement contained one new claim that it considered to be new information, namely that on return to Pakistan, the applicant would need to obtain a new Computerised National Identity Card and that this information was publicly available such that people who targeted him previously may be able to locate him elsewhere in Pakistan.  The second respondent was not satisfied that this information could not have been provided to the delegate before the decision was made, noting that the applicant was aware from his interview that relocation was an issue. 

    c)February, 2017 country information:

    i)Although the second respondent considered that the incidents referred to in these reports occurred after the delegate’s decision, none of the incidents occurred in the applicant’s place of residence or in an area of possible relocation.  The second respondent noted that it had obtained and considered other more recent country information documenting violence against Shias.  Accordingly,  the second respondent was not satisfied that there were exceptional circumstances for considering this information. 

    d)Submission of 10 April, 2017:

    i)The second respondent considered that the UNHCR’s Eligibility Guidelines were issued after the delegate’s decision and was satisfied that they could not have been provided to the delegate.  It considered the Guidelines to be an authoritative and recent source of country information, and in view of the changing security situation in Pakistan, the second respondent was satisfied that there were exceptional circumstances which justified considering this information. 

    e)Information obtained by the second respondent:

    i)The second respondent noted that it had obtained new information about the security situation in Quetta, which was relevant given the volatile and frequently changing security situation and the issue of the reasonableness of relocation.  The second respondent was satisfied that there were exceptional circumstances which justified considering this information.

12. In respect of the applicant’s claims, having regard to country information, the second respondent accepted the applicant’s claims about violence against Shias in Quetta and considered that Sunni groups had targeted Shias in Quetta.  It was satisfied that there was a moderate level of sectarian violence in Quetta.  The second respondent accepted that the applicant was personally targeted as a Shia shop owner.  It noted that the applicant had consistently claimed that he had received written and verbal threats and had provided a consistent account of his residential and employment history that fit with the claimed threats.  It found that whilst the applicant did not mention that he was shot at in his entry interview, the second respondent was prepared to accept that when the applicant said he was targeted, he was referring to the attempted shooting.  The second respondent accepted that the applicant was specifically targeted as a Shia shop owner living and working in a Sunni area and was satisfied that he had to refrain from attending the shop.  The second respondent noted that it had doubts about the applicant’s claim that he made insulting remarks about the religious faith of a person who phoned and threatened him, but accepted that this incident occurred and was satisfied that the incident would increase the likelihood of his being targeted in Quetta by the particular individuals who had sought to harm him. 

13. Accordingly, the second respondent was satisfied that there was a real chance, now and for the reasonably foreseeable future, that the applicant would face serious harm as a result of sectarian violence in Quetta directed against Shias if he were to return.

14. The second respondent proceeded to consider whether the applicant had a well-founded fear of persecution in all areas of Pakistan, in accordance with s.5J(1) of the Act. Whilst the second respondent accepted that the particular individuals in Quetta may have continued to target the applicant while he remained there, the second respondent did not accept that the applicant’s profile was such that he would be targeted elsewhere in Pakistan on the basis that he was a person who insulted Islam in a private conversation.

15. With reference to country information, the second respondent was satisfied that there was no real chance that the applicant faced harm outside Quetta from the groups or individuals who had threatened him there. 

16. The second respondent noted the representative’s post-interview submission, which emphasised country information indicating the presence of a large number of extremist and terrorist groups in Punjab, where Islamabad was located, within the Islamabad Capital Territory (ICT).  The submission also noted that Islamabad and Rawalpindi were separated by only a short bridge and that sources referred to them as “twin cities”.  The second respondent therefore accepted it as appropriate to consider the situation in both Islamabad and Rawalpindi. 

17. Having regard to country information, the second respondent considered that Islamabad was home to a large Shia community, and was relatively safe for migrant Shia communities.  It considered that whilst the authorities could not guarantee safety, the country information showed that sectarian attacks on Shias in Islamabad and Rawalpindi in recent rears showed a definite and continuing downtrend.  Having carefully considered the country information about the security situation in Islamabad and Rawalpindi, the second respondent was satisfied that the chance of the applicant being seriously harmed or killed in either a mass casualty attack targeting Shia or a targeted attack against him as a Shia was very small, and did not meet the threshold for a real chance.  Accordingly, the second respondent was not satisfied that there was a real chance that the applicant would face serious harm in Islamabad or Rawalpindi.

18. In respect of the applicant’s claim to face harm on return to Pakistan as a failed asylum seeker, the second respondent found that there was no information before it which suggested that failed asylum seekers from Western countries or people who had lived in or had connections with Western countries would face a real risk of harm for that reason anywhere in Pakistan. As such, the second respondent found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and therefore did not meet s.36(2) of the Act.

19. In relation to the complementary protection criterion, relying on its anterior factual findings, the second respondent was satisfied that there was a real risk that the applicant would suffer significant harm, such as being arbitrarily deprived of life, should he return to Quetta in the reasonably foreseeable future. The second respondent then proceeded to examine the reasonableness of relocation in accordance with s.36(2B) of the Act.

20. Having regard to its anterior findings, the second respondent was not satisfied that there was a real risk that the groups who threatened the applicant in Quetta would have the interest or capability of locating and harming the applicant elsewhere, even taking into account the applicant’s claim that he insulted the Sunni religion in a conversation with them.

21. The second respondent considered that there were other areas in Pakistan where the applicant did not face a real chance of persecution.  The second respondent noted the delegate’s finding that Islamabad was an area where the applicant did not face a real risk of harm, and where he could reasonably relocate.  On the basis of the post-interview submission made by the applicant’s representative, the second respondent considered relocation to Islamabad in conjunction with its twin city Rawalpindi. 

22. The second respondent considered the applicant’s personal circumstances, namely that his immediate and extended family were in Quetta, he had a reasonable level of education, he spoke a number of languages, he was employed for many years and ran his own business, he was working as a chef in Australia, and that he had a demonstrated ability to manage away from his family and friends as demonstrated by his time in Australia.  The second respondent found that whilst the applicant may have some difficulty relocating to Islamabad or Rawalpindi, it was satisfied that the support available from the broader Shia community and in particular the migrant Shia community, would provide the necessary assistance.

23. The second respondent also considered that whilst there was some risk of sectarian and generalised violence in Islamabad and Rawalpindi, the second respondent was satisfied that it was not at such a level that it would be unreasonable for the applicant to relocate there.  The second respondent considered that the applicant had a demonstrated capacity to establish a successful life and business in Pakistan notwithstanding his status as a member of a small ethnic minority.  It noted the applicant had a wife and three children, but was satisfied that the applicant could continue to provide financial support for them if he were to relocate to Islamabad or Rawalpindi. 

24. Based on its anterior findings, the second respondent was also satisfied that the applicant would not face harm of any kind as a failed asylum seeker who had lived in a Western country. 

25. Accordingly, the second respondent found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Pakistan, that there was a real risk that the applicant would suffer significant harm. Accordingly, the second respondent found that the applicant did not meet s.36(2)(aa) of the Act.

26. On 13 July, 2017, the second respondent affirmed the delegate’s decision.

27. On 3 August 2017, the applicant filed an application to show cause.   The application raises the following ground of review:

    The Immigration Assessment Authority and the delegate of the first respondent for Immigration and Border Protection erred in law in making his decision.

28. This ground of review is devoid of content.  The applicant’s oral submissions did not illuminate the basis upon which he suggests that the second respondent’s decision is affected by jurisdictional error.  His oral submissions simply reiterated the claims that he made before the first respondent’s delegate.

29. The decision record shows that the second respondent set out the relevant tests that it needed to apply that arose from ss.5H, 5J, 36(2)(a), 36(2)(aa) and 36(2B) of the Act. I am satisfied that it gave proper consideration to whether it was satisfied that there were exceptional circumstances to justify considering the new information provided by the applicant in accordance with s.473DD of the Act. The second respondent made extensive reference to the country information it considered relevant. It made findings that were relevant to the task it undertook and those findings were open on the material before it.

30. Having regard to the second respondent’s reasons for decision, it cannot be said, I think, that the second respondent did not undertake the review it was required to undertake by Part-7AA of the Act.

31. In those circumstances, the application for review filed on 3 August, 2017 must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 March, 2018.

Date: 6 March 2018