DOH19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 711
•9 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DOH19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 711
File number: MLG 3276 of 2019 Judgment of: JUDGE BINGHAM Date of judgment: 9 August 2024 Catchwords: MIGRATION – judicial review of decision of Immigration Assessment Authority to not grant a protection visa – citizen of Pakistan – fear of harm from Sunni extremists upon returning to Parachinar area as a Pashtun Shia Turi – fear of harm as a returnee asylum seeker - whether the IAA considered an express claim from the Applicant – local profile claim
MIGRATION – held - no misunderstanding of the claim by the IAA - IAA understood that the Applicant would return to Parachinar and considered the implications of a return to that area of Pakistan – application dismissed with costs
Cases cited: BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418
DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146
EZC17 v Minister for Immigration and Border Protection [2019] FCA 163; 163 ALD 580
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582
Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submissions: 15 July 2024 Date of hearing: 15 July 2024 Place: Melbourne Counsel for the Applicant: Mr J F Gormly Counsel for the Respondents: Ms Martyn Solicitor for the Respondents: Mills Oakley ORDERS
MLG 3276 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOH19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed 30 September 2019 as amended 14 June 2024 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 BINGHAM:
The Applicant filed an application on 30 September 2019, amended on 14 June 2024, (Amended Application) seeking judicial review of the decision of the Immigration Assessment Authority (IAA) made on 30 August 2019, affirming the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) Visa (Visa). The Applicant made protection claims based on being a Pashtun Turi Shia Muslim from Parachinar, a failed asylum seeker and a returnee from a western secular country. The IAA was not satisfied that the Applicant faced a real risk of significant harm if he were to return to Pakistan, and more particularly Parachinar (IAA’s Decision).
The Applicant pressed a single ground of review:
(1)The Authority constructively failed to exercise its jurisdiction or discharge its statutory duty under s 473CC and s 473DB(l) Migration Act 1958 (the Act) to review the delegate's decision by misconstruing and failing to consider an express claim to fear of harm upon return to the Parachinar area from Sunni extremists because of his local profile as a Pashtun Shia Turi who had returned to Parachinar after an absence of seven years seeking asylum in a Western secular nation.
Particulars
a. The claim was made expressly by the applicant's agent in the course of the SHEV interview with the delegate, and again in written submissions to the Authority.
b. The claim was misconstrued by the Authority to mean a claim of profile as a failed asylum seeker and returnee from a western country on return to Pakistan in general, and treated as if it were a claim of membership of that particular social group.
c. The Authority misconstrued the claim of local profile, despite that the applicant's representative had disclaimed in the SHEV interview that this local profile would matter in the large metropolises in Pakistan, including Islamabad, Lahore or Karachi.
d. The claim was supported by the assessment of the DFAT Country Information Report Pakistan of 20 February 2019 (DFAT report) at paragraph 3.104 that "High-profile Shi' a face a moderate risk of violence, as they are more likely to be targeted." The DFAT report was part of the 'review material' given to and required to be considered by the Authority.
e. If accepted, the claim would be dispositive of the applicant's case to be a refugee and/or owed complementary protection, subject to consideration of his other express claims that it would not be safe or reasonable for him to relocate in Islamabad, Lahore or Karachi. The Authority did consider these relocation claims as it had the rejected the applicant's claim to fear harm from Sunni extremists in Parachinar.
The Applicant sought orders that the decision of the IAA be quashed, a writ of mandamus and costs plus reasonable travelling costs. The Minister contended that no jurisdictional error arises from the decision of the IAA and seeks orders that the Amended Application be dismissed with costs.
BACKGROUND
The Applicant is a Pashtun Turi Shia Muslim from the village of Karakhela, near Parachinar in the Upper Kurram District of Pakistan. Geographically, the Applicant’s village is approximately three (3) kilometres from the border with Afghanistan, four (4) kilometres from Parachinar and is separated by a river from two predominantly Sunni villages.
On 17 July 2013 the Applicant entered the Commonwealth of Australia as an unauthorised maritime arrival.
On 19 December 2016, the Applicant lodged an application for the Visa.
On 29 May 2019 the Applicant was interviewed by the Delegate (Delegate’s Interview). The Applicant was represented by KLR Migration Law Consultancy at the Delegate’s Interview. The Applicant’s representative raised a claim during the later part of the interview that the Applicant had a well-founded fear of and would be at risk of harm should he return to Parachinar because he would be profiled as an unsuccessful asylum seeker who had spent a significant amount of time in the west.
On 5 August 2019 the Delegate refused to grant the Visa (Delegate’s Decision). The Delegate referred to the claim made by the Applicant’s representative at the conclusion of the Delegate’s Interview as follows:
[…] Shias - particularly those returning from “the West” - still have a well-founded fear of harm in Parachinar. His profile is heightened in Parachinar for having lived in Australia. He would “certainly not” have a risk of harm in the large cities of Pakistan for having lived in the West. […]
On 9 August 2019 the Delegate’s Decision was referred to the IAA for review.
On 28 August 2019 the Applicant, through his representative, provided written submissions to the IAA that further developed his protection claims.
On 30 August 2019 the IAA affirmed the Delegate’s Decision. At paragraphs [46] and [47] of the IAA’s Decision the IAA stated:
46.The delegate also considered the applicant’s status as a failed asylum seeker and returnee from a western country. During the PV interview, the applicant’s agent said that these were not separate claims but formed a part of the applicant’s profile on return to Pakistan. DFAT indicates that the Pakistani diaspora is significant including in western countries and Australia. People returned to Pakistan voluntarily and with valid travel documentation are typically processed like any other citizen. Those returned involuntarily are typically questioned to ascertain if they left illegally or have committed crimes in Pakistan or abroad but if they have not, are typically released within a couple of hours. There is no credible evidence to indicate the applicant departed Pakistan unlawfully or committed a crime in Pakistan or abroad or is otherwise of interest to the Pakistani authorities. DFAT indicates that Western influence is pervasive in many parts of Pakistan and assesses that individuals are not subject to any additional risk of discrimination or violence for having spent time in western countries or because of perceived western associations. Returnees are typically able to reintegrate into the Pakistani community without any repercussions stemming from their migration attempt. The material does not support the contention that a person of his background and profile would face a real risk of harm
47.In light of the overall evidence including the improving broader security situation and declining levels of sectarian violence across Pakistan taken together with the applicant’s history, profile, and experiences, I am not satisfied that he would, in the reasonably foreseeable future, face a real chance of any harm in Parachinar, including during road travels and when travelling between Kurram and Islamabad (from where he could also safely and lawfully re-enter Pakistan via Islamabad’s international airport).
PROCEEDINGS BEFORE THE COURT
This matter was heard on 15 July 2024 at the Melbourne Registry. The Applicant and the Minister were represented by Counsel.
The Applicant relied upon the Amended Application and written submissions filed on 14 June 2024, the Affidavit of Roshlyn Chand sworn/affirmed and filed 3 November 2023 and the Affidavit of Jacqueline Parker sworn 11 June 2024 and filed 14 June 2024.
In short form, the Applicant argued that the IAA misidentified, misconstrued or failed to expressly consider the claim by characterising it as the Applicant’s profile on return to Pakistan rather than his profile on return to Parachinar, and as such the IAA constructively failed to exercise jurisdiction.[1]
[1] Applicant’s written submissions filed 14 June 2024 (Applicant’s Written Submissions), [25]; Transcript P3:L6-13.
The Minister relied upon the Response filed 30 October 2019 and the Minister’s written submissions filed 1 July 2024 (Minister’s Written Submissions).
The Minister argued, in summary, that paragraphs [46] and [47] of the IAA’s Decision must be read in the context of the reasons as a whole. The reasons of the IAA show that the Applicant’s profile on return to Parachinar was expressly considered in context. Nor can it be said that the IAA misidentified or misconstrued the Applicant’s claim and consequently no jurisdictional error can be found.
LEGAL PRINCIPLES TO BE APPLIED
The principles to be applied are:
(1)If a review of a decision maker’s reasons disclose “that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law[…] …that may give rise to a jurisdictional error”.[2]
(2)There is a requirement that the IAA consider and construe expressly articulated claims or those that clearly arise on the material before it.[3]
(3)The degree of engagement by a decision maker with the submissions made must occur within the bounds of “rationality and reasonableness”, the length, clarity and degree of relevance of the submission.[4]
(4)The degree of consideration necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard it is necessary to have regard to the whole of the decision-makers reasons and the issues considered.[5]
(5)The reasons of an administrative decision maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” and “a commonsense and realistic approach should be taken to understanding the reasons as a whole …”.[6]
CONSIDERATION
[2] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582, [27] (Keifel CJ, Keane, Gordon and Steward JJ).
[3] DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 (DNA17), [46]–[48]; BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418, [9]–[12]; EZC17 v Minister for Immigration and Border Protection [2019] FCA 163; 163 ALD 580, [31].
[4] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [25].
[5] DNA17, [54].
[6] Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10, [141].
Submissions of the Applicant
The Applicant’s claim was made during the Delegate’s Interview.[7] I was taken to the written submission of the Applicant’s then Representative provided after the Delegate’s Interview. This submission identified risk perceived by the Applicant should he return to Parachinar namely because of his profile, and the risk that he would be subjected to adverse attention of Sunni extremists in the area and potentially be persecuted by them.[8] Counsel submitted that the claim should be characterised in the following manner “[s]o the claim is of actors – a profile with those actors in the local area of Parachinar. It's not a claim […] to be of a membership of a particular social group of people returning from the west, and it’s not claimed that the local profile applies in the large metropolises outside of Parachinar”.[9]
[7] Transcript P3:L25-P5:L5; Affidavit of Roshlyn Chand sworn/affirmed and filed 3 November 2023 (Chand Affidavit), Annexure “RC-1”.
[8] CB184-186.
[9] Transcript P5:L34–37; Applicant’s Written Submissions, [30].
I was also taken through the Court Book for the purpose of, it was submitted, clarifying that the claim was exclusive to the local area of Parachinar[10]. I have taken this material into account when arriving at my conclusion.
[10] Transcript P5–P8.
I was then taken to the IAA’s Decision at paragraph [13][11] where the IAA provides a summary of the claims made by or on behalf of the Applicant. It was submitted that there was nothing in those dot points that resembles the claim nor was the claim identified in paragraph [46] of the IAA’s Decision[12]. It was further submitted that insofar as a claim was identified in paragraph [46] it was misidentified by the IAA by “characterising […] the applicant’s profile upon return to Pakistan, rather than Parachinar.”[13] It is said that the Delegate and the IAA made the same mistake by misconstruing the claim as “failed asylum seeker and returnee from a Western Country as a particular social group claim”.[14] In this regard I was taken to the use of the word ‘typically’ in paragraph [46] of the IAA’s Decision as evidence that the IAA was referring to the Applicant as a member of a social group; namely failed asylum seekers from a western country returning to Pakistan. It was submitted that there’s a difference between a country of 260 million with large cities of several million and the local area of Parachinar which has a river separating villages which have been in conflict in the past[15] and that one could not say that the local risk is subsumed in findings on what is going to happen to someone of that description returning to Pakistan.
[11] CB 399.
[12] Transcript P9.
[13] Applicant’s Written Submissions, [29]; Transcript P9.
[14] Transcript P9:L35-38.
[15] Transcript P9-P10.
I asked Counsel why I could not read the reference to Pakistan in paragraphs [46] and [47] in the context of the IAA’s Decision as a whole to include Parachinar and that it seemed that he was asking me to read paragraphs [46] and [47] in isolation from the rest of the IAA’s Decision. Counsel submitted that the evaluation is not specifically about Parachinar. It does not address local issues.[16] It was submitted that the claim could not be identified in paragraphs [46] and [47].
[16] Transcript P10:L16.
Submissions of the Minister
It was submitted that no jurisdictional error arises from the decision of the IAA. The Minister’s Written Submissions identifies five grounds as to why the Applicant’s case cannot be made out:
(a)When applying common sense and a realistic approach to understanding the IAA’s reasons at paragraph [46] and [47] read in the context of the reasons as a whole it is obvious that the IAA consider the claim as characterised by the Applicant. The following paragraphs of the IAA’s Decision were provided as examples of the IAA giving consideration to the claim:
(i)Paragraph [13] at the penultimate bullet point where he alleged that he feared harm from “various extremist anti-Shia militant groups”, and from “Sunnis in surrounding villages”.
(ii)Paragraph [27] where the IAA considers the risks with respect to fears associated with “third party extremist groups” in the local area of Parachinar.
(iii)Paragraphs [36] to[40], [42] and [43] where Department of Foreign Affairs and Trade (DFAT) information, being the DFAT Country Information Report Pakistan of 20 February 2019 (DFAT Country Report) is considered. In particular “a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram” and “the recent trends do not suggest that Sunnis in surrounding villages or militant groups have interrupted these overall security conditions in or around Parachinar”.
(b)The Applicant’s submissions to the IAA (and the Delegate) were limited and confused.[17] The Applicant’s claim with respect to the west was not articulated in writing until submissions were made to the IAA[18]. The IAA’s consideration of the Applicants claim was appropriate to the limited submissions made with respect to the claim.
(c)The IAA did not misidentify or misconstrue the Applicant’s claim. The claim was identified by the IAA in the following manner at paragraph [46] “applicant’s status as a failed asylum seeker and returnee form a western country” and referred to the Delegate’s Interview and the Applicant’s representative’s submission that the claims were not separate claims but formed part of the applicant’s profile on the return to Pakistan”.[19]
(d)Where the IAA identified the claim it should not readily be inferred that there has been a failure to consider the issue.
(e)While “a return to Pakistan” is referred to in paragraph [46] this cannot be read in isolation. The IAA’s consideration was premised on the fact that the Applicant would return to Parachinar. I was taken to paragraph [19] of the IAA’s Decision where it is stated that the Applicant is “a Pashtun Turi and practising Shia Muslim who was born and resided in Karakhela village, Parachinar, Kurram Argency, Khyber Pakhtunkhwa, for most of his life prior to his journey to Australia and am satisfied that this is the area to which he would return”. I was also taken to the concluding sentence of paragraph [47] where the IAA stated that it was not satisfied the Applicant would “face a real chance of any harm in Parachinar, including during road travels and when travelling between Kurram and Islamabad”.
[17] Minister’s Written Submissions filed 1 July 2024 (Minister’s Written Submissions), [7] and [20]; Chand Affidavit, Annexure “RC-1”.
[18] Minister’s Written Submissions, [10] and [20]; CB 184 and 186.
[19] Minister’s Written Submissions, [21].
Ground of judicial review
I now turn to my determination.
I do not accept the Applicant’s argument that the IAA misconstrued, misidentified, or failed to expressly consider the Applicant’s claim.
The IAA identified in paragraph [19] of its reasons that the Applicant intended to return to Parachinar. The IAA at paragraphs [40] and [41] considered the DFAT Country Report and in particular the reported “improved security situation in Parachinar and Kurram”[20] and that “the recent trends do not suggest that the Sunnis in surrounding villages or militant groups have interrupted these overall improved security conditions in or around Parachinar”.[21] Further in paragraph [43] the IAA considered the DFAT assessments as a whole and concluded that there was no suggestion in the material before the IAA that the more detailed security trends, as reported by DFAT in or around Parachinar or Kurram, has changed since then.
[20] CB 431.
[21] CB 432.
In paragraph [46] the IAA identifies the Applicant’s claim in the following manner:
The delegate also considered the applicant’s status as a failed asylum seeker and returnee from a western country. During the PV interview, the applicant’s agent said that these were not separate claims but formed part of the applicant’s profile on return to Pakistan. […]
In paragraph [47] the IAA determined:
In light of the overall evidence including the improving broader security situation and declining levels of sectarian violence across Pakistan taken together with the Applicant’s history, profile, and experiences, I am not satisfied that he would, in the reasonably foreseeable future, face a real chance of any harm in Parachinar, including during road travels and when travelling between Kurram and Islamabad (from where he could also safely and lawfully re-enter Pakistan via Islamabad’s international airport).
Applying a commonsense and realistic approach to understanding the decision of the IAA, one should not read the reference “return to Pakistan” in paragraph [46] as a misconstruction or misunderstanding of the claim. The reference “return to Pakistan” must be read as inclusive of a return to Parachinar. Further, it is clear from paragraph [13] that the IAA understood that the Applicant would return to Parachinar.
Nor can it be said that the claim has been treated by the IAA as if it was a particular social group within the Pakistan diaspora in respect of a social group of failed asylum seekers and returnees from a western country to Pakistan. The IAA listened to the Delegate’s Interview[22] and identified the claim at [46] of the IAA’s Decision. It was described by the Applicant’s representative before the Delegate as not being “separate claims but formed part of the applicant’s profile on return to Pakistan”.
[22] IAA’s Decision, [11].
In my view there has been no misunderstanding of the claim by the IAA. The IAA understood that the Applicant would return to Parachinar and considered the implications of a return to that area of Pakistan.
The claim was first raised at the conclusion of oral submissions before the Delegate. It was not developed in the written submissions provided to the Delegate after the Delegate’s Interview. The claim was articulated in the written submissions to the IAA and consisted of two paragraphs.[23] In my view not only did the IAA consider the Applicant’s claim, but the consideration of the claim was commensurate with the limited submissions provided to it.
[23] CB184 and 186.
CONCLUSION
No jurisdictional error has been identified. I dismiss the Amended Application.
The Minister sought costs fixed in the scale amount, as prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $8,371.30.
Orders will be made accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 9 August 2024
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