Dug16 v Minister for Immigration

[2020] FCCA 125

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUG16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 125

Catchwords:
MIGRATION – Review of decisions – judicial review – grounds of review – unreasonableness.

Legislation:

Migration Act 1958 (Cth), ss.473CA, 473CB

Cases cited:

AVL18 v Minister for Home Affairs [2019] FCA 706

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: DUG16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 447 of 2018

Judgment of: Judge Jarrett

Hearing date: 20 January 2020

Date of Last Submission: 20 January 2020

Delivered at: Perth

Delivered on: 23 January 2020

REPRESENTATION

Solicitors for the Applicant: D’Angelo Legal

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. Leave to amend the application is refused;

2. The application filed on 27 August 2018 is dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 447 of 2018

DUG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Pakistan.  He arrived in Australia by boat on 11 November, 2012.  For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. He lodged an application for a Temporary Protection (Subclass 785) visa.

2. On 20 July, 2016 a delegate of the first respondent refused to grant the visa.  Because the delegate’s decision was a fast track reviewable decision it was referred to the second respondent in accordance with s.473CA of the Act. On 2 November, 2016 the second respondent affirmed the delegate’s decision not to grant the applicant a temporary protection visa. He sought judicial review of that decision and the decision was set aside with consent of the first respondent. The application was remitted to the second respondent to be determined again.

3. On 26 July, 2018 the second respondent again affirmed the delegate’s decision not to grant the applicant a temporary protection visa.

4. By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application be again remitted to the second respondent to be determined according to law. In his application for review filed on 27 August 2018 the applicant sets out the grounds for his application. At the commencement of the hearing before me the solicitor appearing for the applicant expressly abandoned the first ground. The second ground set out in the application for review was also not pursued. It transpired during the course of argument that the second ground of review was erroneously included in the application and had no relationship with the present proceeding. It too was expressly abandoned.

5. Both the applicant and the first respondent filed written submissions for the purposes of the hearing before me.  The applicant’s written submissions appeared to raise a ground not set out in the application for review.  That was identified by the first respondent’s written submissions.  Notwithstanding that, the applicant, by his solicitor, made no application to amend his application for review so as to include the ground set out in his outline of submissions until he was prompted to do so by me.  The ground sought to be pressed was provided orally and not reduced to writing.  The ground is pressed, is in the following terms:

   The application to review the minister’s decision not to grant the applicant a protection visa on the grounds that the minister made a jurisdictional error in unreasonably concluding or addressing the wrong question in concluding that the applicant does not have a well-founded fear of persecution or suffer significant harm.

   The particulars of that would be that as set out in [6] and [7] of the submissions in that the Authority – the country information found – the country information provides that Shi’a Hazaras are discriminated against, that there is continued violence of an ongoing nature, and the conclusion that there is no systematic discrimination against Hazaras or based on the profile of the applicant that he will not suffer – there is no risk of significant harm.  That will be the particulars.

6. Although the proposed ground refers to the first respondent’s decision rather than that of the second respondent, I have taken the proposed amendment to refer to the second respondent’s decision rather than that of the first respondent.

7. The first respondent opposes the amendment on the basis that it has no prospect of success and so to grant leave to amend would be futile.

8. The first respondent opposes the review application more generally.  The second respondent entered a submitting appearance.

Background

1. In his visa application, the applicant said he had left Pakistan because:

   a)when he was in Quetta in Pakistan, there was a suicide bombing and he was arrested by the Army along with three of his friends.  He claimed they beat him up, took him in a cell and tortured him.  He lost consciousness and woke up in hospital a couple of days later.  He remained in Quetta for 4-5 months after the incident and then moved to Karachi where he started a motor repair garage.  He lived in Karachi for 10 to 12 years;

   b)in 2011 people from the Muttahida Qaumi Movement political party started visiting his workshop demanding donations, money and valuables. He claimed that every day the situation became worse. He claimed that his life was threatened and he was being harassed and forced to join the organisation. He says that he refused;

   c)when he made many complaints to local police they did not help him.  In fact, he says that they asked him to comply with the MQM’s demands.  He claimed that he had been detained by the police many times on the MQM political leader’s orders and tortured for many days at a time;

   d)he had been discriminated against due to his Shi’a Muslim religion and had been targeted as a Hazara;

   e)given that his life was at risk, he had no other option than to flee from the country and seek asylum in Australia to seek protection for his life.

2. He expressed a fear that if he were returned to Pakistan, he would be tortured and killed. 

3. In his visa interview that took place on 8 February, 2016 the applicant added to his claims.  He said that:

   a)from around early 2011, MQM members came to his shop approximately four times asking him to join and that he would try and avoid giving them a firm “no” in answer;

   b)in August or September, 2011 he went to the police and lodged a complaint about the MQM members but the police told him to do whatever the MQM said to do;

   c)the MQM interpreted his complaint to the police as a firm “no” to their demands and at the beginning of 2012 his shop was shot at by members of the MQM whilst he was out;

   d)he remained working at the shop and living next door to the shop until he departed Pakistan;

   e)an apprentice who had worked for him had been killed by MQM in 2013 or 2014, after the applicant had left Pakistan.

4. As I have indicated above, on 20 July, 2016 a delegate for the first respondent refused the visa application.  On 22 September, 2016 the application was referred to the second respondent and on 2 November, 2016 the second respondent affirmed the delegate’s decision.  That decision, however, was set aside on judicial review and the application remitted for reconsideration.  That reconsideration took place and on 26 July, 2018 the second respondent again affirmed the delegate’s decision to refuse the applicant’s visa application.

5. Apart from considering the materials given to it by the Secretary pursuant to s.473CB of the Act, the second respondent considered an updated DFAT country report on Pakistan. It did so on the basis that the report was released after the delegate’s decision was made, provided an update on the situation for persons belonging to the ethnic minority to which the applicant claimed to belong and the information was relevant. The second respondent found that there were exceptional circumstances to justify considering that new information.

6. Dealing firstly with the applicant’s claims to have been present at a suicide bombing and thereafter being detained and tortured, the second respondent:

   a)accepted that the applicant marched in a procession in 2004 and was present when a suicide bombing incident occurred;

   b)accepted that the applicant and his friends were detained by the authorities in the aftermath of the bombing and the applicant may have been physically assaulted;

   c)found however, that the fact that, on his own version, the applicant had not been asked any questions and was dumped by the side of the road indicated that this was a random incident of violence and that the applicant was not personally targeted because of any suspicion against him;

   d)was satisfied that the applicant was of no further interest to the authorities after that event and he did not have and does not have any adverse profile with the authorities because of this incident; and

   e)was not satisfied that the applicant faced a real chance of harm from Pakistani authorities for any reason linked to the bombing incident.

7. Dealing next with the applicant’s claims concerning the MQM and that group’s intimidation of him, the second respondent:

   a)accepted that the applicant was approached by members of a group associated with MQM and invited him to join them;

   b)accepted that the MQM asked him to apply for a firearms licence but that he refused to do so;

   c)accepted that he was forced to “provide donations and/or was extorted”;

   d)did not accept that the applicant would be subjected to continued visits, intimidation, a drive-by shooting and threats because he had declined the invitations to join the group.  The second respondent reached that conclusion on the basis that:

   i)the applicant did not claim to have any sort of profile within his community; any profile or experience as a political campaigner or as a militant, no military training and no family connections which might mark him out as a valuable recruit;

   ii)the information in the review material did not indicate that MQM or any associated militia groups engaged in forcible recruiting and Shi’as were well represented within MQM; and the applicant had remained living in his home next door to the garage for at least six months after the claimed shooting incident;

   iii)the second respondent did not consider it plausible that the group would not have made further attempts to intimidate, threaten or harm the applicant if he had the adverse profile as claimed; and

   iv)the applicant did not report the shooting to the police and he provided no other evidence in relation to that incident.

   e)did not accept that the applicant was subjected to forcible recruiting attempts or that he had, or would have, any adverse profile with MQM, any associated groups or any other group or person arising from his refusal of the invitation to join MQM, or because of his visit to the police;

   f)considered that any harm the applicant suffered because of the extortion was very low-level and it was not satisfied that he faced a real chance of harm because of extortion demands.

   g)was prepared to accept that the applicant’s apprentice may have died, but was not satisfied that his death was in any way linked to the applicant;

   h)did not accept that any group or person had been looking for the applicant in Quetta; and

   i)did not accept that the applicant faced a real chance of harm in Pakistan from the MQM or any associated group for any reason.

8. The second respondent found that if the applicant returned to Pakistan, he would return to Quetta.  It considered country information relating to the treatment of Shi’a Hazaras in Pakistan as well as the applicant’s claims to fear harm as a Shi’a Hazara in Quetta.  The second respondent’s consideration of this information and the way in which the second respondent used it forms the basis of the applicant’s claims now that the second respondent’s decision is affected by jurisdictional error.  I will deal with these matters in more detail below.  It is sufficient to note now, that the second respondent was satisfied that the applicant did not have any particular or personal profile, history or attributes that would mark him out as different to an ordinary Shi’a Hazara living in Quetta. 

9. The second respondent noted that the applicant’s wife and children had returned to live in Quetta and no claim had been made that they had been subject to any harassment, discrimination or violence there. The second respondent recorded that the applicant’s in-laws also reside in a Hazara enclave in Quetta and that the applicant had worked in Karachi and Quetta previously.

Consideration

1. The applicant argues that the second respondent “made a jurisdictional error in unreasonably concluding or addressed the wrong question in concluding, that the applicant does not have a well-founded fear of persecution or will suffer significant harm”. 

2. The second respondent identified that the applicant claimed to fear harm as a Shi’a and a Hazara.  It recorded that the applicant’s parents are both deceased, his siblings are all in Germany or Australia, and his wife and children are now living with his wife’s family in Quetta. The applicant also claimed to have an uncle in Karachi.  The second respondent reiterated its finding that the applicant “was not of any adverse interest to the authorities and I do not accept that he left Quetta for that reason or that the authorities or any other groups or persons continue to look for him in Quetta”.  The second respondent recorded that the applicant told the first respondent’s delegate that he returned to Quetta on many occasions to visit his mother albeit, claiming to have travelled at night to avoid the authorities.  The second respondent found that if the applicant returns to Pakistan he will return to Quetta “at least initially”.  The second respondent therefore considered whether the applicant will face harm as a Shi’a and a Hazara in Quetta.

3. The second respondent summarised the country information before it as follows:

   a)DFAT has assessed that Shi’as do not face specific discrimination in Pakistan.  DFAT also noted that there are up to 900,000 Hazaras in Pakistan, the majority of whom (some 700,000) live in and around Quetta, mostly in Hazara enclaves. Many Hazaras in Quetta are self-employed or work for small businesses (DFAT, “DFAT Thematic Report – Shi’as in Pakistan January 2016”, 15 January 2016, CIS38A801265);

   b)Hazaras born in Pakistan are Pakistani citizens and can access formal identification: DFAT, “Pakistan Country Information Report 1 September 2017”, 1 September 2017, CISEDB50AD5515;

   c)the United States Department of State reporting on events in 2015 noted that Shi’as and Hazaras continued to face discrimination and threats of violence in Quetta.  According to press reports and other sources, they were unable to move freely outside of Quetta’s two Hazara-populated enclaves. Consumer goods in those enclaves were available only at inflated prices and Hazaras reported an inability to find employment or pursue higher education. They also alleged government agencies discriminated against Hazaras in issuing identification cards and passports: United States Department of State (USDOS), “Pakistan - Country Reports on Human Rights Practices 2015 “, 13 April 2016,OGD95BE926173;

4. The second respondent noted that Pakistani Hazaras may face low-level societal discrimination (such as delays in obtaining official documents). It accepted that there may be difficulties moving outside the Hazara enclaves.  However, the second respondent attributed that to violence rather than societal discrimination, it seems.  The second respondent also accepted that there may be difficulties in obtaining employment and some consumer goods within the enclaves.  However, the second respondent did not consider that the information before it does not indicate that there was any “official or systematic discrimination against Hazaras”.  The second respondent concluded that the difficulties reported in the enclaves were due to population and demand issues and were not a result of official policies or directives.

5. Significantly, the second respondent said this (footnotes omitted):

   31. The United States Department of State (USDOS), reporting on events in 2015 noted that Shi’as and Hazaras continued to face discrimination and threats of violence in Quetta. According to press reports and other sources, they were unable to move freely outside of Quetta’s two Hazara-populated enclaves. Consumer goods in those enclaves were available only at inflated prices and Hazaras reported an inability to find employment or pursue higher education. They also alleged government agencies discriminated against Hazaras in issuing identification cards and passports.

   …

   33. I have considered sectarian and general violence in Quetta and note that according to DFAT, the province of Balochistan (of which Quetta is the capital) has suffered from long-term ethnic tensions and politically motivated violence. Because Hazaras are ethnically distinct, they are targeted to a greater extent than other Shi’as. However, DFAT noted in 2016 that the number of attacks in Balochistan has declined in recent years because of successful security force operations which have targeted prominent militia leaders. Within Quetta, Hazaras tended to stay within the two Hazara enclaves (and I note that the applicant’s wife and children live in one of these enclaves), where they enjoyed a greater degree of security. Overall, DFAT assessed that there remained a moderate level of violence, including sectarian violence, in Balochistan and that Hazara Shi’as remain a key target of militant groups.

   . 34. More recent DFAT information notes that Shi’as remain threatened by anti-Shi’a groups such as Lashkar-e-Jhangvi (LeJ) which, with its sub-groups, continues to be the main perpetrator of anti-Shi’a violence. It has claimed attacks on Shi’as and Hazaras in Quetta and in 2011 it announced its intention to “abolish” Shi’as and Hazaras. Since 2015, however, a number of prominent militants have been killed and security operations have curtailed the group’s activities somewhat. In 2016 it claimed attacks on Shi’as in Karachi and Parachinar. It also claimed two attacks in Balochistan, although these attacks targeted a Sufi shrine and a police training academy.

   35. The same report notes that Hazaras are more easily targeted because of their distinctive appearance and face a higher risk of violence than other Shi’as. The Pakistan government provides some security for the Hazara enclaves in Quetta, such as checkpoints on roads leading into the areas, but it is the Hazara community itself which provides most of the security measures. While there has been an improvement in the security situation for Hazaras in Quetta, this is assessed to be due to the community measures rather than support from the security forces or a change in the intent of hostile militants. DFAT assesses that Hazaras face a moderate risk of sectarian violence and despite a significant decrease in the number of violent attacks against Hazaras, they remain segregated and are key targets for militants. The risk of such violence is, however, partly mitigated by the high levels of security maintained by the Hazara communities themselves.

   36. I have also considered figures on sectarian violence in Pakistan published by the South Asia Terrorism Portal. These indicate that during the period January 2015 – April 2016, there were 10 sectarian incidents targeting Shi’as and/or Hazaras in and around Quetta, which led to 23 deaths. During the same period, the Karachi district reported 26 incidents of violence against Shi’as and/or Hazaras, which resulted in 79 deaths. Other information in the review material notes that despite Karachi having a high number of incidents and casualties, it has nevertheless seen a decline in both against previous years. Balochistan, on the other hand, has seen an increase. Of the 181 fatalities (all groups, not only Shi’a Hazaras) that were reported in Balochistan, 85 (46.9%) were militants, insurgents or criminals, while 46 (24.4%) were security and government officials. The remaining 50 fatalities (27.6%) were civilians.

   37. USDOS also reported a number of incidents of violence against Shi’a Hazaras in Quetta in 2015 and noted that to avoid sparking violent incidents, the authorities confined Shi’a religious processions to the Hazara enclaves. The report also noted that anti-Shi’a graffiti was common in Quetta.

1. The second respondent then recorded the following findings:

   38. The applicant was involved in a previous sectarian attack in Quetta in 2004 and was subjected to harm from the army following that incident, but I have found above that he does not face any ongoing adverse interest because of that incident. The applicant has never claimed to have any profile in politics or to have engaged in any political or community activities (other than the Ashura Day procession) which might bring him to the attention of the authorities or sectarian groups. He has not claimed to have suffered any harassment, extortion or other adverse interest from sectarian or militia groups in Quetta. I am satisfied that the applicant does not have any particular or personal profile, history or attributes that would mark him out as different to an ordinary Shi’a Hazara living in Quetta. I also take into account that his wife and children have returned to live in Quetta and he has not claimed that they have been subject to any harassment, discrimination or violence there.

   39. While the reports cited above indicate that some people face difficulties living in a Hazara enclave (such as accessing employment), I note that the applicant is a qualified mechanic who has run his own business in Karachi in the past, and prior to that he worked as mechanic in a Hazara enclave in Quetta. I also note that he has family (in-laws) in Quetta in the same enclave. I am not satisfied that the applicant faces a real chance of harm arising from the possible difficulties reported above.

   40. I accept that incidents of violence, including sectarian and/or religiously motivated violence, continue to occur and I cannot rule out completely the chance that the applicant may be harmed as a Shi’a Hazara in Quetta, but I also take into account that Quetta is a large city and the information above indicates that the Hazara enclaves (where the applicant has lived previously and where his wife and children live now) are protected by both government and community measures. While it is possible that the applicant may be caught up in violence in Quetta, considering the size of the city, the relatively low number of civilian casualties from reported incidents (compared with militant and security force casualties) and the protection measures in place, I am not satisfied that this is more than a remote chance.

   41. I am not satisfied that the applicant faces a real chance of harm as a Shi’a and a Hazara should he return to Quetta.

   42. Having regard to all of the above, I am not satisfied that the applicant faces a real chance of harm: from the Pakistan authorities arising from the 2004 bombing in Quetta; from MQM or any associated group or person arising from the incidents in Karachi in 2011-2012; or as a Shi’a and a Hazara. I am not satisfied that he faces a real chance of harm when his claims are considered cumulatively.

2. The applicant argues that the second respondent’s conclusion that the applicant did not face a real chance of harm was plainly unreasonable.   He points out that a fear of being persecuted is well-founded if there is a “real chance” of being persecuted.  A “real chance’ conveys the notion of a substantial, as distinct from a remote chance, of persecution coming about.  So much can be accepted as established by authority.

3. The applicant argues that the second respondent did not direct itself in such way “as to arrive at a rational conclusion as to what country information may establish a well-founded fear, or real chance, of persecution”.  Instead, it is said, the second respondent based its conclusion upon an “irrational selection of country information to come to a conclusion that, because the applicant does not have any particular or personal profile, history or attributes that would mark him out as different to an ordinary Shi’a Hazara living in Quetta and because his wife and children live in Quetta, the information detailed at paragraph 2 [of the applicant’s written submissions] above (concerning discrimination against and security for Hazara’s) is (somehow) irrelevant and need not be considered”.

4. But that is not what the second respondent did or found.  The second respondent’s reasons demonstrate that it considered the country information as I have set out above.  Using that information it identified the relevant risks and then proceeded to assess the magnitude of those risks for the applicant.  It gave consideration to the question of discrimination for Hazaras and concluded that the applicant was unlikely to suffer that discrimination because he had worked in the past in Quetta as a mechanic and in Karachi.  If that form of discrimination existed, it was unlikely to impact upon him. 

5. Further, the second respondent critically analysed the applicant’s claim that he would be exposed to violence.  It acknowledge the information before it about ethnic tensions and politically motivated violence in the applicant’s home region and weighed that with the other information before it.  Those matters are set out in [40] of the second respondent’s reasons I have extracted above.  Rather than the second respondent’s reasons demonstrating that it did not direct itself to the identified risks, the reasons demonstrate clearly that it did so.  A conclusion that the applicant had a well-founded fear, or that there is a ‘real chance’ that he could be a victim of such an event was not inevitable.

6. The first respondent submits that to make a finding of unreasonableness requires the clearest of circumstances.  He argues that those circumstances do not exist here.  To support the argument the first respondent refers me to AVL18 v Minister for Home Affairs [2019] FCA 706 at [9] where Colvin J observed:

   None of the points raised could be characterised as a claim of kind that might demonstrate jurisdictional error in the approach to fact finding. Importantly, the Authority, when undertaking a review, has been entrusted with the statutory task of evaluating the factual basis for the appellant’s claim. Therefore, it does not exceed its authority if it makes a factual finding with which others may disagree. Rather, it must be shown that by reason of unreasonableness, illogicality or a failure to engage properly with the fact-finding task or a failure to address an important claim or some other reason, the approach to fact-finding lacked the character or quality of decision that the Authority had been authorised to make. Further, unreasonableness in this context has a particular meaning. It means a decision where there is a grave factual error that has materially affected the decision. The test has been described as stringent or expressed in strong terms and the circumstances in which it might be met have been said to be extremely confined or in the realm of the extraordinary: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11] (Kiefel CJ), [52], [70] (Gageler J), [135] (Edelman J). A difference in views as to the factual conclusions that might be reached on the basis of the material before the Authority is not enough. In particular, it is for the Authority to form a view as to the country information.

7. The applicant took no issue with that passage insofar as it represented a statement of the relevant principles to be applied.

8. In my view the second respondent’s decision does not demonstrate unreasonableness in the way required by principle to warrant interference with the determination.  Whilst another decision maker might have arrived at a different conclusion, that is not the test.  What is required is a demonstration that it was not open to the decision maker to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133]. The applicant does not demonstrate that here. I accept the first respondent’s submission that it cannot be said that only one conclusion, favourable to the applicant, was open to the second respondent.

9. As to the complementary protection claim, the second respondent relied on its anterior findings and concluded that it was not satisfied that there were reasonable grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Pakistan, he would face a real risk of significant harm:

   46.    I have found above that the applicant does not face a real chance of harm: from the Pakistan authorities arising from the 2004 bombing in Quetta; from MQM or any associated group or person arising from the incidents in Karachi in 2011-2012; or as a Shi’a and a Hazara. As ‘real chance’ and ‘real risk’ equate to the same threshold and for the same reasons given above, I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Pakistan, the applicant will face a real risk of significant harm.

10. It was not clear from the applicant’s submissions whether his ground of review was directed to the second respondent’s findings on his claim to convention protection or complementary protection.  They are apt to have application to both.  But the applicant’s argument fails for the same reasons his arguments relating to his convention protection claims fail.

Conclusion

1. Leave to amend the application in the way sought by the applicant should be refused.  I accept the first respondent’s submission that in substance the proposed ground is an impermissible attempt at merits review.

2. The application for review must be dismissed. The parties agree that costs should follow the event. The first respondent seeks costs fixed in the sum of 5,000 which is less than that prescribed by the relevant item in the schedule 1 to the Federal Circuit Court Rules 2001. The amount claimed is appropriate.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 January, 2020

Associate: 

Date:  23 January 2020