DWP18 v Minister for Home Affairs
[2020] FCA 153
•12 February 2020
FEDERAL COURT OF AUSTRALIA
DWP18 v Minister for Home Affairs [2020] FCA 153
Appeal from: DWP18 v Minister for Home Affairs and Anor [2019] FCCA 2694 File number(s): QUD 559 of 2019 Judge(s): GREENWOOD J Date of judgment: 12 February 2020 Catchwords: MIGRATION – consideration of whether a claim “clearly emerged” from the material put to the delegate such that the Immigration Assessment Authority had a statutory obligation to consider the claim as part of a review of the delegate’s decision Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] 261 FCR 503 Date of hearing: 12 February 2020 Date of last submissions: 12 February 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: Mr H Clift Solicitor for the Appellant: Angus Francis, Angus Francis Lawyers Counsel for the First Respondent: Mr J D Byrnes Solicitor for the First Respondent: David McLaren, MinterEllison ORDERS
QUD 559 of 2019 BETWEEN: DWP18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
12 FEBRUARY 2020
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
GREENWOOD J:
In this appeal, the appellant is a Pakistani man whose application for a protection visa was refused by a delegate of the Minister for Home Affairs. He claims to be and is a Sunni Muslim Pashtun (Afghan) national of Pakistan. He arrived in Australia on 13 July 2013. On 7 October 2016, the appellant applied for a Safe Haven Enterprise visa (a “Safe Haven visa”). The starting point in relation to that matter is the application lodged on 30 September 2016 by Chand Lawyers through Mr Parmesh Chand, a solicitor who was acting and has been acting for the appellant in these proceedings. The application was actually received by the Department on 7 October 2006.
The question that is alive in the appeal is a relatively short point. The proposition is that the applicant’s material, as lodged with the delegate, agitated the claim that he held a well‑founded fear of persecution (a fear of harm in Pakistan should he return), and that harm would be visited upon him by the Taliban should he seek to engage in further work as a teacher in Pakistan. That claim is not agitated in those terms in the material before the delegate but it is said to clearly emerge from a collection of factors. The first of them is that in the Form 790C, there is a question, Question 44, which asks: “Are you in contact with relatives outside of Australia?”
The question requires particulars or details about that matter to be given, and the answer given by the appellant is in these terms:
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.
In that Form, there is another question, Question 85, and it requires details of educational qualifications to be provided by the applicant and, as to that, the information is that from April 1989 to March 1999, the appellant acquired primary and secondary education or schooling which was completed in the country of Pakistan at a particular Government High School. Then, from April 2005 to March 2007, the appellant undertook and completed a degree course at an institution described as Government Degree College, Bagun, Kurram Agency. The appellant completed two years of that course and again in Pakistan. From April 2007 to March 2008, he undertook educational studies at a Government Degree College at Sadda, Kurram Agency. It is a degree course. However, the appellant ultimately withdrew from that course in May 2008, as I understand his answer to the question. Then, at Question 89, this question is asked: “Why did you leave that country?” The appellant was asked to give specific details when answering the question. The answer to that question is this:
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 [the] 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. As a result of this incident we moved to Peshawar and within days of our moving, our house was destroyed by a major blast. Taliban took photos of the blast (which they do all the time) and distribute in the [neighbourhood] to scare people.
Taliban’s main policy is to ensure that children are not educated. They target teachers and authorities who run schools.
In answer to Question 90, which is: “What do you think will happen to you if you return to that country?”, the appellant gave this answer:
In August 2008 Taliban blew [up] my father’s house. There was also lot of trouble in the area at the time. There were lots of killing and kidnapping. I was targeted because I refused to follow their commands that I should not teach at the NRC. I feared my and my family’s life and we all decided to go to an area in Peshawar.
The answer concludes:
There is a video on YouTube which shows the fighting in Bilyamin, Kurram Agency, area in August 2008.
Question 93 is this: “Did you move or try to move to another part of the country to seek safety?” The appellant was invited to give details about that matter, and he answered in this way:
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.
Question 94 asks: “Do you think you will be harmed or mistreated if you return to that country?” and the answer given is: “The Taliban will hunt me down”.
So those are the questions and answers which were given as part of the application. On 28 January 2017, Mr Chand on behalf of the appellant, sent a letter to the Case Officer handling the matter on behalf of the Department. In that letter, there are a series of documents attached. One of them is a certified copy of a letter from the Norwegian Refugee Council (“NRC”). That letter is undated. However, it says these things, after introducing the standing of the body itself:
As an implementing partner to UNHCR, NRC is responsible for the formal primary education for more than 4000 children in Ashgaro Refugee Camp, Kurram Agency Pakistan.
Teachers are being trained in conjunction with the ongoing teaching. The project developed to upgrade the teachers and children with the regards to repatriation, and the schools are as such mobile and can [be] utilised upon return to Afghanistan.
With this letter I confirm that the applicant has been working as a teacher since 19/2/02 to 4/8/04.
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.
That letter has been given by the Project Manager, Education, Tove Fisher. The appellant attended an interview with the Case Officer and, arising out of that interview, an email was sent on 27 July 2017 by the appellant’s Migration Agent which attached a statement. That statement set out a summary matters which were designed to clarify aspects of matters discussed at the interview. One of the things that was the subject of clarification was the topic of: “Why was I their target?” and the clarification given to that matter was this:
They knew that I had worked for a NGO. It is known internationally that Taliban targets “places of interest”. I was person of interest for two reasons: (i), I refused to work for them (and they react to people who refuse their command). (ii), I worked for an NGO that was involved in education.
The delegate ultimately made a decision in the matter on 30 August 2017 rejecting the application for the Safe Haven visa. The decision record sets out the scope of the protection claims which the delegate understood to be the claims being advanced for the purposes of the application, and they are summarised at Part 4 of the decision.
In that part on p 158 of the Appeal Book, the delegate says that, in summary, he accepts that the applicant was employed by the NRC as a teacher in the Ashgaro Refugee Camp between 2002 and 2005 and that the applicant ceased employment with the NRC in 2004 following the closure of Ashgaro Refugee Camp although I note that in the Immigration Assessment Authority’s (“IAA”) decision there seems to be some ambiguity about whether that camp closed in 2004 or 2005. In terms of the delegate’s understanding of things, the delegate says in this Part 6:
I have accepted that the applicant worked as a teacher for the NRC (a Norwegian NGO) in Ashgaro Refugee Camp from 2002 until the camp’s closure in 2004. I have also accepted that the applicant was spoken to and admonished by TTP operatives regarding his employment in 2007.
The delegate then goes on to identify some other matters about engagement with the Taliban and then says this:
In this respect, given the brief period of time within which the applicant worked as a teacher for an NGO, and the fact that this employment ceased thirteen years ago, I have given consideration as to whether the applicant would realistically be viewed as a teacher, or as an NGO worker in the present day. Nevertheless, I will consider the applicant’s circumstances within the context of the available country information.
It is fairly clear from those observations that the delegate was proceeding upon the footing that the issues in relation to the claims for the visa, on the footing of a well‑founded fear of persecution, went to historical matters concerning the appellant’s role as a teacher in those years just described, which were said to be 13 years ago. The delegate takes up the topic of the general issue of education and the role of education in the activities of the Taliban and makes some observations about the consequences of having considered the country information. As to that matter at p 163, the delegate says this:
Whilst it is evident from the country information that persons employed as teachers (and to a lesser extent, workers of certain NGOs) face an existent risk of targeting from groups such as TTP, it appears typical that such instances occur during the course of a person’s employment. Particularly with regard to teachers, the overarching motivation for the targeting appears to be the prevention of girls’ education, or a resistance to Western curricula being taught in schools, rather than an opposition to teaching as a profession. It does not appear evident that groups such as TTP would seek to target a person for their previous employment as a teacher, particularly when that person has long since left that vocation. In consideration of the applicant’s personal circumstances against the information presently before me, I find it to be a remote or insubstantial prospect that the applicant would face an ongoing chance of targeting by the TTP for his brief period of employment as a teacher within the NRC between 2002 and 2004, and, accordingly, I consider that the applicant does not face a real chance of being targeted in Pakistan on such a basis.
The delegate then says that he finds that the appellant’s fear of persecution “in this regard” is not well‑founded. Again, these observations of the delegate make it very plain that the delegate was proceeding on the footing that he was examining the historical events identified by the applicant in relation to his teaching role within the NGO, and the question for the delegate was whether those historical events were things which would give rise to a well‑founded fear of persecution.
The delegate was not proceeding on the footing that he was examining the question of whether the appellant held a well‑founded fear of persecution on the footing that should he return to Pakistan and should he “return to teaching” as his “chosen vocation”, he would then face again the historical conduct of the Taliban. That seems never to have been part of the frame of reference by the delegate, having considered the application and material before him. The delegate, ultimately, as I have said, refused the application for the visa. The matter was referred to the IAA. In that context, Mr Chand sent a letter to the IAA in the nature of a submission and, in that submission, he says this:
Following is our submission.
…
[T]he delegate accepted that persons employed as teachers face a risk of being targeted by groups such as TTP but found that 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.
We attach several screenshots from a particular website which shows that schools and teachers are a target of the Taliban.
Those attachments identify some terrible events which occurred in the context as just described. The IAA then embarked upon a consideration of the statutory function of reviewing the decision of the delegate and from the very outset turned its mind to the proposition that had been put to it by Mr Chand. At para 4, the IAA says this about that matter:
On 18 September 2017, the applicant’s migration agent provided a submission and a number of documents to the IAA. The submission includes legal argument addressing the delegate’s decision. I have had regard to this aspect of the submission. The submission includes the new claim that the applicant would like to work as a teacher if he returned to Pakistan as this is his chosen vocation. The applicant’s migration agent submits that the applicant should not be expected to give up his chosen profession of teaching in order to avoid persecution.
He provides the new information that the applicant undertook studies in teaching. No documentary evidence has been provided to support this assertion such as an academic transcript or any elaboration as to the applicant’s commitment to this field other than the claim that he wanted to study and develop his skills as a teacher and abandoned a degree course after three years when “the trouble began”.
At para 5, the IAA says this:
In his SHEV application, SHEV interview, and a submission to the delegate following the SHEV interview, the applicant made claims related to his past work as a teacher employed by the Norwegian Refugee Council (NRC) in a camp accommodating refugees from Afghanistan. He did not refer to any intention or desire to return to employment as a teacher if he returned to Pakistan or to any fears related to any such future employment in Pakistan in these contexts. Nor is there any indication in his accounts of his previous study at the entry interview and in his visa application that he had undertaken studies in teaching.
In para 6, the IAA makes observations about the engagement between the appellant and the delegate and questions asked of the appellant about whether there were any further things that the appellant might wish to say about his application. The observation is made by the decision‑maker at para 7 that this question of wishing to pursue his vocation as a teacher in Pakistan as a foundation for a well‑founded fear of persecution on return to Pakistan (due to the consequences of Taliban engagement with him should he take that course) had not been raised by him “at an earlier point”. In para 8, the IAA says this:
The applicant claims he gained employment as a teacher in the Ashgaro Refugee Camp in 2002 on the basis of his successful completion of 10 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 2005.
In para 8, the IAA also makes these further observations, which are said to crystallise the nub of the error on the part of the IAA. The passage is this:
As discussed, no detail of the applicant’s claimed commitment to teaching has been provided other than his migration agent’s assertions in the submission that the applicant wishes to work as a teacher in Pakistan, teaching is his chosen vocation, and 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”. In all the circumstances, I am not satisfied that exceptional circumstances exist to justify considering the new claims relating to the applicant’s education and desire to work as a teacher in the future.
The error captured in that passage is said to be the failure on the part of the IAA to identify, from the aggregation of material earlier described, that what was actually being agitated by the appellant was a claim that he would wish, should he return to Pakistan in the ordinary course of events, to pursue his vocation as a teacher and resume teaching of children but that he holds a well‑founded fear of persecution that should he do so, he would be the subject of harm from the Taliban.
That particular basis for the claim for a well-founded fear of persecution giving rise to the foundation for the application for the Safe Haven visa is not expressly articulated in any place in any of the material before the delegate. So the question becomes whether or not, having regard to the answers to the questions and the other material to which I have referred, one could fairly come to the conclusion that the claim, so formulated, has clearly arisen on the material with the result that the IAA has failed to discharge its statutory review function by taking the identified claim into account when conducting a review of the decision.
That question, then, falls to be decided by reference to the authorities, and the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] 261 FCR 503 (“AYY17”), in particular, at [18] identifies the principles which govern the question of whether a claim “clearly emerges” from materials before the delegate. At [18], the Full Court says, of the Administrative Appeals Tribunal review function, this:
The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers. … The Tribunal is only required to consider such claims where they are either the subject of substantial, clearly articulated argument relying on established facts, or clearly emerge from the materials.
[original emphasis]
These principles equally apply when the IAA undertakes its statutory review function: AYY17 at [18]. So the question becomes one of whether or not it can be said that the claim to hold a well‑founded fear of persecution on the footing that the appellant fears harm should he return to Pakistan because he would wish to engage in the profession of teaching and re‑engage his vocational skills in that regard, is a claim which “clearly emerges” from the material put to the delegate and thus the subject of review before the IAA.
Part of the difficulty with that proposition is that the appellant was, throughout this whole process, represented by lawyers and the lawyers acting on his behalf, in their submission to the IAA, as I have already quoted, raised this important notion that the appellant would like to work as a teacher if returned to Pakistan as this is his chosen vocation. The solicitor for the appellant goes on, as I indicated earlier, to say that the delegate’s finding that the appellant had long left the vocation of teaching, incorrectly assumed that the appellant would no longer wish to work as a teacher if he returned to Pakistan. That claim as put in those terms to the IAA was never raised expressly with the delegate or in the materials put to the delegate, and, in that sense, it is truly characterised as a new matter or a new claim or new information.
Having looked at these questions and the letter from the NRC and the other material which is particularly emphasised by the appellant, recognising that the task of the IAA is to adopt a forward‑looking view about whether the appellant will suffer harm upon return, the IAA and the delegate have examined the claim in a forward‑looking way by having regard to the factors that were actually put to it. They were the historical set of circumstances concerning the appellant’s period with the NGO and his period as acting as a teacher in that role with the NGO and the legacy consequences of that role having occurred in the historical period, 13 years ago.
It is not clear to me at all that it can be said that, consistent with the principles, the claim, as framed, to a well‑founded fear of persecution has fairly or clearly emerged from the materials. There is certainly no doubt questions of reference to his role as a teacher and a statement in the NGO letter about futurity, but those matters really all go to the historical set of circumstances which engaged the appellant and engaged the IAA on the question of whether or not the historical factors were things which, in a forward‑looking way, would give rise to questions of concern. At para 41, the IAA says:
There is country information before me indicating that the Taliban and other militant groups have targeted schools in terrorist attacks in Pakistan, including in recent attacks in FATA and Khyber Pakhtunkhwa. Human Rights Watch commented in March 2017 that motivations for attacks on education institutions by militant groups included matters such as the desire to disrupt the education of girls, to damage government institutions, to retaliate for government actions targeting militants and to protest against the content of curricular.
As the delegate noted, the country information suggests that teachers harmed in militant attacks have usually been harmed in the course of their employment rather than in attacks targeting them individually outside the school setting.
These observations of the Tribunal and other remarks of the Tribunal at para 53 reflect the circumstance that the Tribunal is trying to come to grips with the claim of a well‑founded fear of persecution based upon, in a forward‑looking way, the historical matters, not addressing a claim based upon, in a forward‑looking way, a return to the teaching profession. Had that claim been articulated, of course, it would have been necessary to address it.
I am not satisfied that it emerges clearly from the material. At no point is it suggested that at the core of this concern is a desire on the part of the appellant to return to the teaching profession and assume that vocational role, giving rise to the conclusion that should he do so, he would face a well-founded fear of persecution from the Taliban for that very reason. The Tribunal was addressing the consequences for the appellant should he return to Pakistan, having regard to the historical factors.
That being so, I am not satisfied that the short but central question has been made good. I am not satisfied there is error on the part of the primary judge, and it necessarily follows that the appeal must be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 12 February 2020
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