DWP18 v Minister for Home Affairs

[2019] FCCA 2694

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2694

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.473DD

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Applicant: DWP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 758 of 2018

Judgment of: Judge Vasta

Hearing date: 15 August 2019

Date of Last Submission: 15 August 2019

Delivered at: Brisbane

Delivered on: 15 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Clift

Solicitors for the Applicant: Angus Francis Lawyers

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 26 July 2018 and amended on 30 November 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.  That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 758 of 2018

DWP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 29 June 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate of the Minister not to grant the Applicant, DWP18, a protection visa.  On 26 July 2018, the Applicant filed an originating application asking this Court to review that decision.

2. The background to this matter is that the Applicant is a Sunni Muslim Pashtun from the Bilyamin area of Lower Kurram Agency in the Federally Administered Tribal Areas of Pakistan.  He finished year 10 at high school in 1999 and worked on his family farm for a number of years. 

3. From 2002 to the end of 2004, he was employed by the Norwegian Refugee Council as a teacher in a nearby camp for refugees from Afghanistan.  He taught Pashtu and Urdu language, religious studies and sport.  His employment ended when the camp closed around the end of 2004. 

4. He attended Government Degree College in Bagan in Kurram Agency from approximately 2005 to 2007.  He attended Government Degree College in Sadda in Kurram Agency from approximately 2007 to 2008.

5. The militant group Tehrik-i-Taliban, or TTP, were active in his area.  The TTP were known to target people who worked for non-government organisations.  In 2007, the TTP threatened him because of his previous work with an NGO, because his home had a satellite dish and television and because he sometimes recorded and played movies and music.  He said that the TTP did not approve of these activities, as they considered them to be religiously forbidden.  They encouraged him to join and engage in Jihad.

6. The Applicant said that later in 2007, the TTP threw a hand grenade into his family home in Bilyamin, killing his brother.  He said that he believes that he was the target of the attack.  His family then moved to Peshawar because of this incident.  In August 2008, within days of his departure from Bilyamin, the TTP destroyed his family home in Bilyamin.  The TTP sent his family a recording of the destruction of their home and posted a video of this on YouTube. 

7. He claimed that the TTP visited his family home in Peshawar on a number of occasions, pressuring him to return to Kurram Agency and to join them.  He believes that their actual purpose was to encourage him to return to Kurram Agency so that they could kidnap him for ransom and/or kill him there.  The Taliban sent one or more letters to him in Peshawar, encouraging him to return to Kurram Agency.

8. After his departure from Pakistan, the TTP, or people associated with them, often called on his family, asking about him.  He said that his family changed address four times.  He said the TTP has not contacted his family since they last changed address, as they do not know the new address.  He said that he fears that if he returns to Pakistan, the TTP may harm him because of his past work as a teacher for the NGO, the NRC, and/or because he will be returning from a western country.  He said the Taliban is opposed to western people and western influences, and they will consider him an infidel and a spy.

9. The IAA went through the claims at paragraph 44 of the reasons, and at the beginning of 45, the IAA said this, after going through what the claims were:

   44. As discussed, the applicant’s statements regarding his interactions with the TPP have varied considerably.  He did not refer to the claimed 2007 grenade attack on his home during the entry interview, and his statements about the reasons for this attack have varied.  He did not refer to any interaction with the Taliban after his move to Peshawar in his Safe Haven Enterprise Visa application, nor did he refer to any interaction between the Taliban and his family in Peshawar following his departure from Pakistan.  As also discussed, he did not refer to any threats related to his ownership of a satellite dish and television or his enjoyment of music or films in the entry interview or SHEV application.  The country information discussed suggests that it is unlikely that the applicant would have been targeted by the Taliban from 2007 onwards for his past employment as a teacher in a refugee camp in 2002 to 2004 or for his refusal to join them.

   45. Having regard to my concerns relating to the applicant’s evidence and to the country information discussed, I am not satisfied that the applicant was threatened by the TPP or any other Sunni militant group in Bilyamin or Peshawar due to his past employment by NRC as a teacher in a camp for Afghan refugees or his unwillingness to join the TTP.

10. The IAA then went through the country information as to what life is like back at Peshawar and what consequences that may have for the Applicant.  At paragraph 54, the IAA said:

    54. The country information before me indicates that incidents of violence continue to occur in Peshawar.  Nevertheless, considering the evidence as a whole, including the applicant’s individual circumstances, the absence of any evidence of harm to his family in Peshawar since his departure from Pakistan (other than his claims that they were visited by Taliban looking for him, which I have rejected), the information concerning the level and focus of violence in Peshawar, the size and population of Peshawar, the downward trend in violence and the government’s apparent ongoing commitment to reducing violence in Pakistan, I am not satisfied that there is a real chance of harm to the applicant from the TTP or any other Sunni militant group, or as a result of the security situation, in Peshawar, now or in the foreseeable future.

11. The IAA found that the Applicant didn’t meet the criteria for the definition of “refugee”. 

12. The IAA then looked at the complimentary protection criteria and concluded that the Applicant would not face a real risk of significant harm on those grounds. 

13. Having come to those conclusions, the IAA affirmed the decision not to grant the Applicant a protection visa.

14. The grounds for this application are in the amended application that was filed on 30 November 2018.  They are:

    1. The second respondent failed to have regard to all the information contained in the applicant’s application for a protection visa.

    2. The second respondent erred in its application of s 473DD.

    3. The second respondent committed jurisdictional error by failing to consider an integer of the applicant’s claim.

15. The way to understand these three grounds is this: that they are, in fact, all interconnected into one particular complaint, and that is that the Applicant, whilst not having made an express claim, made a claim that was fairly raised on the material.  That claim is that the Applicant feared harm, should he seek to engage in further work as a teacher. 

16. The claim was made plain in the submission that the Applicant’s representative made to the IAA.  This is found at page 187 of the court book.  The submission said this, in part:

    -the delegate accepted that persons employed as teachers face a risk of being targeted by groups such as TTP but found the applicant would not be targeted for his previous employment as a teacher, particularly when he had long left that vocation (at page 8). However, the applicant would like to work as a teacher if returned to Pakistan as this is his chosen vocation.  The delegate’s finding that the applicant ‘had long left that vocation’ incorrectly assumes that the applicant will no longer be working as a teacher if returned to Pakistan.  As such, the delegate has failed to make an assessment on whether the applicant is likely to face persecution if he returns to Pakistan and works in his chosen field of teaching.

    Later on in the submission, it is written:

    -Similarly, in the present matter the issue of the applicant’s occupation needs to be considered.  The applicant had taken teaching as his chosen vocation.  He undertook studies in teaching (education) and worked for the NRC as a teacher from 2002-2005.  He wanted to study and up his skills as a teacher and enrolled in a four year degree course, which he abandoned after three years when the trouble began.

17. The question to be answered is whether this is a claim that arose on the material.  The Applicant submitted that it is such a claim.  The Applicant points to the Safe Haven Enterprise Visa application, which one can see at page 65 of the court book.  At question 89 of the application, it is asked, “Why did you leave that country (or countries)?”  Answer given:

    I left Pakistan because I was targeted by Taliban.  I was targeted by Taliban because I was working for a Non Government Organisation (NGO) which was Norwegian Refugee Council (NRC). 

    The Norwegian Refugee Council is an independent humanitarian organisation helping people forced to flee.  The organisation provides assistance, protection and long-term solutions to displaced persons. 

    Many of the displaced people have children who have been deprived of basic education.  People who work for NGOs are often the main target of Taliban.  I worked for the NRC as a teacher from 2002 to 2005.  I wanted to study and up my skills as a teacher.  I enrolled in a four year degree course.  My family lived in Bilyamin Kurram Agency and in 2007 our house was targeted with a hand grenade thrown at our house which resulted in the death of my elder brother.

18. And there’s a little bit more that is written then.  If one then looks at other answers that were given, question 93:

    Did you move, or try to move to another part of that country (or countries) to seek safety?

    Answer was:

    Yes we moved to Peshawar but there is no safe place in Pakistan.  Even lawyers were attacked Quetta, amid police presence. 

    Taliban also penetrated the Army Public School in Peshawar and killed more than 300 children in 30 minutes.

19. At question 85, which is on page 63, the question is, “Give details of education and qualification since birth”.  The Applicant has answered, “April ’89 to March 1999, Bilyamin, Kurram Agency Government High School”, and he simply notes that as primary and secondary.  Then he has, “April 2005 to March 2007, Government Degree College, Bagun in Kurram Agency”, and he describes that as “degree course”.  And then, “April 2007 to March 2008, Government Degree College, Sadda at Kurram Agency”, and has that as a degree course.

20. With regards to the first two matters, he has ticked “completed”, and then for the last one, he has “withdrew” as a ticked box. 

21. At question 44, he was asked, “Are you in contact with relatives outside of Australia?”  His answer is:

    I am in contact with my wife, mother and brother.  I usually speak to them, as I am concerned about the welfare of my children and my family, generally.  I do not talk to them for long, as I have the fear that their conversation could be overheard.  I have more fear about my children’s school, as the schools are the prime target by Taliban.  Taliban also kidnap children and use them to achieve their goal.

22. The Applicant says that if one looks at what he has said in that application that I have highlighted, then one looks at the letter that was accepted by the IAA from the Norwegian Refugee Council, one can then find that there is a claim that has been made that he feared harm should he seek to engage in further work as a teacher.

23. The letter from the Norwegian Refugee Council is at page 122 of the court book.  Whilst it talks of what the NRC does, and it does say that the NRC is responsible for the formal primary education for more than 4000 children in Ashgaro Refugee Camp, Kurram Agency, Pakistan, it says:

    Teachers are being trained in conjunction with the ongoing teaching.  The project developed to upgrade the teachers and children with regard to repatriation, and the schools are such mobile and can utilise upon return to Afghanistan [sic].

    It then says:

    With this letter, I conform (the applicant) has been working as a teacher since 19 February 2002 up to 4 August 2004.

    Strangely enough, it then reads:

    During the mentioned period, he/she performed his/her duties for NRC with much dedication, diligence and honesty.  He/she has been using the best of her/his skills and knowledge for the benefit of the Afghan children.  NRC not only appreciate his/her performance but also strongly recommend him/her to be used as a teacher in the future.  Wish his/her all the best and good in the future.  Yours sincerely, Tove Fisher, Project Manager, Education, NRC Pakistan/Afghanistan.

24. That is the evidence upon which the Applicant says that a claim was raised on the material.  In looking at what was before the IAA, it seems that, other than what I have just read into the record, there was no distinct conversation about the Applicant and his feeling that teaching was his vocation and that he wished to return to teaching, but that if he did so in Pakistan, he would be targeted by the TPP or other Sunni militant group. 

25. The IAA ended up ruling that this was a new claim; that is, it was a claim that did not arise and was something that had not been claimed before.

26. How the IAA came to that conclusion was something that did trouble me, and it has taken me a little bit of time to come to grips with that.  This is because of what the IAA have said at paragraph 7.  The IAA said:

    7. The applicant has been assisted by a migration agent throughout the SHEV application process.  His migration agent does not provide any explanation in his submission to the IAA as to why the applicant did not indicate that he wanted to work as a teacher on his return to Pakistan, or raise any fears on this basis, at an earlier point.

27. And this sentence, which was the sentence that most disturbed me:

    Nor does he indicate why the applicant did not previously indicate that he had undertaken studies in the area of education, as might have been expected if this had significance for him.

28. Clearly, on the material that I have read into the record, the Applicant has indicated that he had undertaken studies in the area of education.  It seems if one just looks at that particular paragraph, it is as if the IAA had ignored the material that was there at the answer to question 89, found on page 65 of the court book.  If they did that, then it would seem to me that that sort of ignorance, or failing to take that into consideration in coming to a decision as to whether this was a new claim or not, may be problematic.

29. However, I have gone back and read the decision again.  It seems to me that one then has to look at what was written at paragraph 8, that is:

    8. The applicant claims he gained employment as a teacher in the Ashgaro refugee camp in 2002 on the basis of his successful completion of ten years of high school.  His employment ceased when the camp closed in late 2004 or early 2005.  He last studied at a tertiary level in March 2008, when he abandoned a degree course.  He indicated that after he moved to Peshawar in 2008 he worked intermittently as a taxi driver.  He did not claim to have completed any further study, or to have engaged in any other form of teaching or education-related activity after he moved to Peshawar.  In Australia, he states that he has been employed as a driver since 2015.  He has not claimed to have sought to engage in teaching or any other education-related activity or study in Australia.  It is now more than thirteen years since the applicant was employed as a teacher in Pakistan and ten years since he last engaged in any tertiary study.  As discussed, no detail of the applicant’s claimed commitment to teaching has been provided other than the migration agent’s assertions in the submission to the IAA that the applicant wishes to work as a teacher in Pakistan, teaching is his chosen vocation, and that he abandoned study due to troubles experienced in 2008.  These matters lead me to question the veracity of the claim that the applicant has undertaken studies in teaching and that he wishes to work as a teacher in Pakistan in future, or that he is qualified to do so, or that it is his chosen profession…

30. In looking at what is written in paragraph 8, it does seem to me that that level of information is gleaned from the IAA examining what was in the application for Safe Haven Enterprise Visa.  That information must have come especially from looking at what was said in answer to question 89. 

31. If one then looks at later on, when the IAA summarised the Applicant’s claims, the IAA has spoken about the employment in the camp, ending when the camp closed around the end of 2004, and the attending at the Government Degree College in Bagan from 2005 to 2007 and the Government Degree College in Sadda in Kurram Agency from 2007 to 2008.  That information in paragraph 10 of the IAA’s reasons must have and could only have come from an examination of the Safe Haven Enterprise Visa application.

32. Having come to that view, one then has to go back to paragraph 7 and look again at what it is that the IAA is saying when they say that the Applicant did not previously indicate that he had undertaken studies in the area of education, as might have been expected if this had significance for him.  It would seem to me that this is a reference to what has been said in the entry interview and the Safe Haven Enterprise Visa interview and the fact that it, as a separate aspect that this was his vocation, has not actually ever been mentioned. 

33. It does seem to me, then, that the IAA was correct that this was a new claim, and the IAA did have regard to all of the material that the Applicant has claimed to me today was somewhat ignored.

34. It seems to me that when one does look at all of this material, it cannot be said that a claim, that the Applicant feared harm should he seek to engage in further work as a teacher, was made on the material.  I therefore am of the view that this is a new claim. 

35. If it is a new claim, then, as the authorities say, it is new information. As new information, the IAA must then look at the provisions of s.473DD to see whether it does come within the exceptions to that. As the IAA said at paragraph 9:

    …The applicant has not satisfied me as to either of the matters in s.473DD(b) in relation to this information, neither am I satisfied, given that this material was in substance before the delegate, that exceptional circumstances exist to justify considering this information.

36. It does not seem to me that there has been any error in the reasoning of the IAA as to the reception of this evidence.  As was conceded by Counsel for the Applicant and the solicitor for the Minister, the resolution of this matter really turned upon whether this Court was satisfied that the claim made was a new claim or whether it was a claim that had arisen from the material in the “NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1” sense.

1. For the reasons I have given, I am of the view that it is a new claim, and, therefore, there has been no jurisdictional error illustrated.

2. I dismiss the application with costs in the sum of $7,467.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 26 September 2019