DNA17 v Minister for Immigration
[2018] FCCA 3101
•31 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNA17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3101 |
| Catchwords: MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether information provided to the Authority was new information pursuant to s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 65, 473CB, 473CC, 473DD, 473EA |
| Cases cited: CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 SZRKT v Minister for Immigration and Citizenship (2013) 212 FCR 99 |
| Applicant: | DNA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1692 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1692 of 2017
| DNA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The Applicant proceeds on an amended application filed on 18 June 2018 in which the Applicant challenges the decision of the Second Respondent (‘the Authority’) made on 6 July 2017 under s.473CC(2)(a) of the Migration Act1958 (Cth) (‘the Act’) to affirm a decision made by a delegate of the First Respondent (‘the delegate’) under s.65 of the Act to refuse to grant the Applicant a (subclass XD-785) temporary protection visa (‘the visa’).
The sole basis of the Applicant’s challenge to the Authority’s decision is as set out under the heading ‘Ground 1: Grounds of Application’, as contained in the amended application. It is that the Authority “failed to consider a submission of substance”. The particulars of that ground are as set out in the Applicant’s written submissions on which the Applicant relies and which are dated 18 June 2018. Those particulars are as follows:-
“1. The applicant challenges the decision of the IAA on the basis that it failed to consider a “submission of substance” made to it, objecting to the reasonableness of relocation, as relevant to his complementary protection claims.
2. The applicant submits that inherent or implied in the obligation to conduct a “review”, the IAA was obliged to consider all “submissions of substance” made by the applicant (see, by analogy, SZSSC & Minister for Immigration (2014) 317 ALR 365, [81]).
3. As recorded at Reasons in [5], the IAA identified the existence of a “new claim”, that there was no information to indicate whether the applicant might receive any support from the small Hazara communities in the contemplated places of relocation.
4. At reasons [11], it is apparent that the IAA wrongly believed that this new claim was new information – it was not new information but simply a submission or argument about what findings were and were not open on the information already before the IAA. As is also apparent from Reasons [11], the IAA refused to consider the submission.
5. In not considering the submission, the IAA failed to perform a review as required by the Migration Act 1958 (Cth) and its decision should be quashed, with costs.”
Background
The Applicant was born on 30 August 1985. He is a national of Pakistan. He is of Shia faith and Hazara ethnicity from Quetta in Pakistan’s Baluchistan province.
The Applicant arrived as an unauthorised maritime arrival in Australia on 2 February 2013.
On 11 July 2016 the Applicant applied for the visa. He advanced claims and evidence in his written application; provided documentary evidence to the Department of Immigration and Border Protection (‘the Department’) on 12 July 2016 and 22 July 2016; and attended an interview with the delegate on 12 October 2016 wherein he advanced further claims and evidence. On 13 October 2016 he forwarded to the Department further documentary evidence.
The material facts of the Applicant’s claims accepted by the delegate were the following, as set out in the delegate’s decision at page 173 of the Court Book:-
a)the Applicant is a citizen of Pakistan from the city of Quetta in Baluchistan province;
b)the Applicant is an ethnic Hazara and his religion is Shia Muslim;
c)the Applicant witnessed a rocket attack at a neighbourhood park near his home in May 2011 in which eight people were killed and others injured;
d)the Applicant’s paternal uncle was killed by militants during a sectarian attack in 2012;
e)Hazara Shias have been targeted during attacks by military groups in Quetta;
f)the Applicant departed Pakistan on 28 December 2012 to travel to Australia where he claimed asylum;
g)the Applicant has not personally been mistreated, harmed or targeted in Pakistan because he is a Shia Muslim and/or ethnic Hazara.
As set out in the delegate’s decision record, the issue of relocation within Pakistan was discussed with the Applicant during the interview with the delegate, with the Applicant providing only limited objections to the possibility of relocation.
Relevantly, the delegate’s decision record states:-
“… During the TPV interview, it was put to the applicant that there are Hazara Shia communities in other parts of Pakistan, including Lahore, which would be safer for him. The applicant responded that it would not be possible for him to relocate because he would be recognisable as a Hazara throughout Pakistan on account of his distinguishable facial features. The applicant sated [sic] that Hazaras have been persecuted in Karachi and it will not be long before they face the same threats in Lahore and Islamabad. The Applicant said that there have been examples of Taliban resistance to the local police in Islamabad and he asserted that Lahore is the main base for groups like Laskar-E Jhangvi and Jung Islam, where they have special events and recruit members. The applicant acknowledged that there is a Hazara community in Lahore but he speculated that as the Hazara population grows in the city there will be more and larger scale attacks against them. The applicant indicated that having an education would not guarantee his safety and said that even if a place was safe now there is no guarantee it will remain that way in the future because the mullahs and other religious heads have a lot of power and influence in Pakistan.”[1]
[1] Delegate’s Decision Record dated 29 November 2016, 8-9.
The delegate was not satisfied there was a real chance of the Applicant suffering serious or significant harm in Lahore, in the Punjab province. The delegate noted that Department of Foreign Affairs and Trade (‘DFAT’) country information before the delegate assessed that in larger cities such as Lahore there is a higher level of communal integration between Sunnis and Shias; and that levels of generalised and sectarian violence are lower in Punjab relative to the rest of Pakistan. For the purposes of s.36(2B)(a) of the Act, the delegate considered that it would be reasonable for the Applicant to relocate to Lahore. The delegate noted that DFAT reports that Lahore is home to Hazara communities and that some Hazaras from Quetta have relocated there.
On 29 November 2016 the delegate refused the visa application.
The IAA
By correspondence to the Applicant of 30 November 2016, the Authority notified the Applicant that the decision of the delegate to refuse the Applicant the visa had been referred to the Authority for review. That correspondence noted, amongst other things, that the Department had provided the Authority with all the documents it considered relevant to the Applicant’s case. This included any material provided by the Applicant to the delegate before the decision to refuse the visa was made. The Authority advised that it would:-
“…proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.”
The ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ noted, at paragraph 20, that the Applicant, for the purposes of the review, could provide a written submission and that if the Applicant wished to provide the Authority with new information then:-
“22. [The Authority] can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. [The Authority] must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
23. If you want to give [the Authority] new information, you must also provide an explanation why:
·the information could not have been given to the Department before the decision was made, or
·the information is credible, personal information which was not previously known and may have affected consideration of your claims, had it been known.”
By correspondence of 20 December 2016, the Applicant’s agent provided the Authority with a detailed submission (‘the document’). During the hearing of the matter, Counsel for the Applicant conceded that much of the five page document that was provided to the Authority contained both submissions and new information, new information being new country information. In particular, on page 4 of the document under the heading “Other Information” were a set of dot points. Relevantly, the fifth and sixth dot points stated:-
“The applicant has no family or support networks anywhere in Pakistan outside Quetta. DFAT assesses that Shias can relocate with relative ease and frequency because of family and community networks throughout Pakistan, and states that migrant communities provide a support network.[2] DFAT’s assessment that the broad Shia community is able to relocate easily because of family and tribal networks implies that without these, relocation would be difficult. Much of the information about the viaibility of relocation addresses the situation of Shias generally. Hazara Shias make up only 1% of the population of Pakistan, whereas Shias make up 20%.[3]
Unlike Shias from other ethnic groups, Hazara Shias are readily identifiable because of their distinctive facial features. There is a Hazara Shia community of reasonable size (some fifteen thousand) in Karachi, but there is no specific information before me about the size of the Hazara Shia communities in Lahore or Islamabad. DFAT describes them as “small”.[4] There is no information to indicate what level of support, if any, a Hazara Shia such as the applicant could expect to receive from the small Hazara Shia communities in Islamabad/Rawalpindi or Lahore; or whether he would receive any support from Shia communities made up of other ethnic groups.”
[2] DFAT, ‘DFAT Thematic Report – Shias in Pakistan January 2016’, 15 January 2016.
[3] DFAT, ‘DFAT Thematic Report – Hazaras in Afghanistan and Pakistan’, 26 March 2014.
[4] DFAT, above n 2.
The decision of the IAA
On 6 July 2017, the Authority affirmed the delegate’s decision. In its Decision Record, under the heading ‘Information before the IAA’, the Authority noted that it had regard to the material referred to it by the Secretary under s.473CB of the Act. The Authority also noted that the Applicant’s representative had provided a submission to the Authority on 20 December 2016. The Authority noted that the submission referred to new information, being mostly country information, and further, the submission also included, as relevantly set out in paragraph 5 of the Decision Record:-
“… the new claim that, if the applicant were to relocate to a city such as Islamabad, Rawalpindi or Lahore, there is no information to indicate what type of support, if any, the applicant might receive from the small Hazara communities in these cities.”
The Tribunal noted in its Decision Record that the possibility of relocation to other areas in Pakistan including Lahore, Karachi and Islamabad, was discussed with the Applicant during the TPV interview, relocation having been addressed in separate statements accompanying the applicant’s visa application. The Tribunal did not accept that “the Applicant did not previously have an opportunity to provide information about issues associated with relocation to other areas of Pakistan”.
The Tribunal said further, at paragraph 11 of the Decision Record:-
“ Having regard to the other information that is before me, and the opportunities given to the Applicant to provide information regarding the possibility of relocation, I am not satisfied that exceptional circumstances exist to justify the consideration of this new claim and information.”
The Authority thereafter proceeded to consider the Applicant’s claims for protection which the Authority summarised in paragraph 12 of the Decision Record as being as follows:-
“ He is a Hazara Shia Muslim. He was born in Quetta in Balochistan and lived there all his life. His wife, children and parents still live in Quetta.
· He attended school until year 11. After leaving school, he worked in markets in Quetta selling clothing. He travelled to Iran to undertake casual labouring work on construction sites on a number of occasions when work was scarce in Quetta. He stayed in Iran for periods of one to six months at a time.
· He left Pakistan due to the ongoing violence perpetrated against Shias and Hazaras by a number of militant groups. Hazaras are targeted by extremist groups because they are considered to be infidels due to their Shia faith.
· On 6 May 2011, he witnessed an attack at a park near his home in Quetta. Men in a car fired a rocket and guns killing eight people and injuring many others.
· On 1 September 2012 his uncle was killed with nine or ten other people while travelling to buy vegetables to sell in his shop. On 2 February 2012, an attack in Quetta close to his wife’s family’s home killed around 80 people and injured 100 more. A number of other attacks have targeted Hazaras in Quetta.
· He fears that he will be killed, or seriously injured, in a targeted attack because of his Hazara appearance and Shia faith no matter where he lives in Pakistan. He would face a higher risk than other Shia Muslims because he is readily identifiable as a Shia Muslim because of his Hazara appearance.
· He would be unable to practice his religion because Shia mosques are often targeted by Sunni extremists.
· His cousin is a member of the Hazara Democratic Party.
· The Pakistani authorities could not protect him. They have been unable to prevent past attacks on Shia Hazaras.
· His wife and children are scared and risk being killed when they leave their house. They do not leave Hazara town often.”
The Authority accepted that the Applicant was a Shia Muslim of Hazara ethnicity and a national of Pakistan as claimed. The Authority stated, in paragraph 16 of the Decision Record:-
“… In general, I found the applicant to be a credible witness and I accept his claims relating to his education, employment and family life.”
The Authority found, however, that whilst it accepted that a number of attacks targeting Hazara Shias in Quetta occurred in 2012, the inconsistencies in the Applicant’s evidence regarding the incident concerning his uncle led the Authority to conclude that his uncle was not killed in such an attack.
Having considered each of the claims of the Applicant, the Authority concluded, as set out in paragraph 22 of the Decision Record, that it was satisfied:-
“that the applicant faces a real chance of death or injury as a result of sectarian attacks in Balochistan. I am satisfied that there is a real chance of serious harm to the Applicant as a Shia Hazara in Balochistan.”
The Authority, then turned to the question of relocation. In paragraphs 23 and 24 of the Decision Record, the Authority stated as follows:-
“23. Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan. DFAT reports that sectarian violence occurs in parts of all Pakistan, however, the type and intensity of sectarian violence varies between and within provinces. Notwithstanding this variation, the downward trend of violence since 2013, particularly following the commencement of operation Zarb-e-Azb in 2014, has been reported to be evident across all provinces.
24. According to DFAT, levels of generalised and sectarian violence are lower in Punjab province than other parts of Pakistan. In 2014, 18 sectarian attacks were reported across Punjab province and in the Islamabad Capital Territory, resulting in 21 deaths. According to the South Asia Terrorism Portal (SATP), a total of 16 Shias died in three attacks across Punjab and the Islamabad capital territory in 2015.”
The Authority went on to consider the geographical location of Shia communities, noting that they were reported by country information to be dispersed throughout Punjab, including in the capital Lahore.[5] Relevantly, in respect of this application, the Tribunal set out in paragraph 32 of the Decision Record, that it considered the chance of harm to the Applicant in the context of the small size of the Hazara community in Lahore. The Authority noted that DFAT reported in 2016 that there “is a Hazara community in Lahore”, while an earlier DFAT report reported that there was a “small” Hazara community in Lahore.[6] The Authority reasoned:-
“The size of the Hazara community in Lahore is unclear, but I accept it may be relatively small. However, regardless of the size of the Hazara community in Lahore, the country information before me suggests that attacks on Hazaras and Shias in Lahore are rare.”[7]
[5] DFAT, above n 2.
[6] DFAT, above n 3.
[7] Decision Record, 32.
The Authority concluded that it was not satisfied there was a real chance of harm to the Applicant, including as a result of discriminatory treatment on the basis of his Hazara ethnicity and Shia faith in Lahore, or as a result of the security situation in Lahore. The Authority concluded, as a result of its various considerations and findings, that the Applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act, thus, the Applicant did not meet s.36(2)(a) of the Act.
The Authority then went on to consider complementary protection criterion and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Pakistan, there was a real risk the Applicant would suffer significant harm. The Applicant thus did not meet s.36(2)(aa) of the Act. In particular, given the single ground of this application, the Tribunal said in paragraph 49 of the Decision Record, the following:-
“I accept that the applicant does not have any family members in Lahore. He is a relatively young man who is currently employed as a tiler. He has not claimed that he has any health problems or other characteristics that might render him vulnerable and in particular need of familial or other support in a new city. I am satisfied that the existence of a small community of other Hazaras in the city, the potential for interaction with other Shias, and the relative integration of the Sunni and Shia communities in the city mitigate the risk that the applicant will be socially isolated in Lahore.”
Consideration
The Applicant submits that the Authority was obliged to consider all “submissions of substance” citing the decision of Griffiths J in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 (‘SZSSC’), and that the Authority failed to have regard to such submissions in the document as referred to in paragraphs 13 and 14 herein.
As is conceded by the Applicant, the document contained both new information and submissions as to the factual information already before the Authority.
Legal Principles
These are as set out, usefully, in the submissions of the First Respondent, and adopted below.
In Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, the Full Court held that the Authority is not precluded by ss.473DC or 473DD of the Act from entertaining a “submission” directed to “the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information”.[8] The Full Court continued at paragraph 74 as follows:-
“The constraints imposed by s 473DD, and the power of the Authority to entertain a “submission” so confined, cannot subvert by the simple expedient of a visa applicant’s attempt to force upon the Authority for consideration “new information” under the guise of a submission. To the extent that a visa applicant seeks to do so and where the “new information” does not meet the requirements of s 473DD, however, the Authority can properly place to one side any such “new information” and not take it into account. The fact that difficulties may be encountered in a single document headed “submissions” which may contain a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material confers no licence upon a visa applicant to force upon the Authority a “duty” to consider new material which does not meet the requirements of s 473DD or a licence upon the Authority to disregard the constraint imposed by s 473DD. Although such difficulties may be accepted, those difficulties cannot preclude a visa applicant from advancing his or her claims in such a manner as he or she sees fit. It remains for the Authority to sort the wheat from the chaff.”
[8] Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, 35.
In CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at 42, Mortimer J observed that assessing whether a submission was “substantial”, and what the decision-maker did or did not do in its reasons in terms of considering it, will be “highly fact dependant.” One potentially relevant factor that may affect whether a submission is “substantial” is whether it relied on an “established fact”.[9]
[9] SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, 79, 81.
In assessing whether a submission was considered, the Authority is not obliged by s.473EA of the Act “to set out or summarise submissions which are made to it”.[10]
[10] Ibid 81(d).
In SZSSC, Griffiths J held at paragraph 81(b) that:-
“merely because the tribunal fails to deal with a submission does not necessarily amount to jurisdictional error.”
That is, the submission must be of sufficient importance or significance to the Applicant’s claim, or to the Authority’s reasoning, to give rise to jurisdictional error.[11]
[11] SZRKT v Minister for Immigration and Citizenship (2013) 212 FCR 99.
In the Court’s view, the Applicant’s statements in the document referred to in paragraphs 13 and 14 above, were directed to “new factual information”, rather than that factual information existing before the delegate. That new information was country information. Furthermore, the Authority was correct, as was submitted by Counsel for the First Respondent, to conclude that the document contained a new claim being that it was unreasonable for the Applicant to relocate to Lahore due to the absence of family or support networks there.
The Applicant had not suggested in the proceedings before the delegate, even in circumstances where the issue of relocation was discussed by the delegate with the Applicant, that he, the Applicant, required a level of support. This was a substantial new claim not raised before the delegate, being a complaint about the reasonableness and/or practicability of relocation specific to the personal circumstances of the Applicant which had not been previously advanced. It was, therefore “new information”.
Even, were the material in the document to be characterised as a “submission”, rather than “new information”, and was one not considered by the Authority, contrary to the Court’s findings as to these matters, the Court accepts the submission of Counsel for the First Respondent that it was unnecessary for the Authority to directly or expressly determine whether there was “no information to indicate whether the Applicant might receive support from the small Hazara communities” in Lahore because the Authority correctly observed, at paragraph 49 of the Decision Record, that:-
“[The Applicant] has not claimed that he has any health problems or other characteristics that might render him vulnerable and in particular need of familial or other support in a new city.”
The submission was therefore not of significance to the Applicant’s claims nor significant in respect of the Authority’s reasoning process.
No jurisdictional error attends the decision of the Authority. The application will be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 31 October 2018
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