DYK17 v Minister for Immigration

[2018] FCCA 2799

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYK17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2799

Catchwords:

MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority erred in determining there were no exceptional circumstances for justifying the consideration of new information – whether the Authority failed to exercise its discretion to seek further information – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476.

First Applicant: DYK17

Second Applicant: DYL17

Third Applicant: DYM17

Fourth Applicant: DYN17 BY HER TUTOR THE FIFTH APPLICANT

Fifth Applicant: DYO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 472 of 2017

Judgment of: Judge Street

Hearing date: 31 July 2018

Date of Last Submission: 31 July 2018

Delivered at: Perth

Delivered on: 31 July 2018

REPRESENTATION

Counsel for the Applicant: Mr R Jahnke

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms B Rayment

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Court appoints the fifth applicant the tutor for the fourth applicant and the Court dispenses with the need for further compliance with the Rules in that regard.

2. The further amended application is dismissed.

3. The first, second, third and fifth applicants pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 472 of 2017

DYK17

First Applicant

DYL17

Second Applicant

DYM17

Third Applicant

DYN17

Fourth Applicant by her tutor the Fifth Applicant

DYO17

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 1 August 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were all found to be citizens of Pakistan and their claims were assessed against that country. The first applicant is the son of the fifth applicant, and is the grandson of the second applicant, and is the brother of the third and fourth applicants.

3. In summary, the first applicant claimed to fear harm as a result of his imputed political opinion, religion, and membership of a particular social group of failed asylum seekers returning from a western country. The first applicant alleged that in March 2013, he was forcibly attempted to be recruited by the Taliban and received a threatening letter and that an incident occurred as a result of which he went into hiding.

4. The second and fifth applicants did not raise their own protection claims in the visa application, however the fifth applicant claimed to fear persecution as a result of her imputed politician opinion, her religion and membership of a particular social group of women who initiated divorced, divorced women in Pakistan, and failed asylum seekers returning from a western country.

5. The third and fourth applicants claim to fear persecution as a result of their imputed political opinion, religion, membership of a particular social group of single women in Pakistan, and single women from divorced parents in Pakistan.

6. On 16 January 2017, the delegate found the applicants failed to meet the criteria for the grant of Safe Haven Enterprise visas. The delegate made adverse credibility findings in relation to part of the first applicant’s claims. The delegate found the first applicant had fabricated his claim of being beaten by the Taliban in order to enhance his protection claims. The delegate expressed reasons why the delegate doubted the first applicant’s claim as to being shot at by a person on a motorbike. The delegate found the first applicant had fabricated his claims about the Taliban’s attempt to recruit him, and fabricated his claim about being beaten by members of the Taliban, and referred to document fraud and doubted the veracity of the document produced in support of the first applicant’s claims, and did not accept the claimed shooting incident.

The Authority

1. On 23 January 2017, the Authority wrote to the applicants explaining that the application for the Safe Haven Enterprise visas had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicants an opportunity to put on new information and submissions. The applicants did put on submissions and new information dated 20 February 2017, which were referred to in the reasons of the Authority.

2. In the applicants submissions dated 20 February 2017, on page 606 of the Court Book, titled “Women In Pakistan”, issue was taken with the findings of the delegate which were criticised as being superficial and not taking into account actual circumstances of the fifth applicant’s life in Pakistan. There were then set out five dot points: one relating to ownership of land; one in relation to the means or opportunity of the fifth applicant to live independently, for example, rent a property; further, one related to employment and referred to the business that was operated within her father’s house and that there was no renting or purchase of independent business premises and no employees. The fourth dot point referred to the fifth applicant being housebound and restricted in her movements unless a male relative was available to accompany her, and advanced a reason in relation to the male’s helping in respect to the textile outlets; and finally, a submission relating to those who can access medical treatment, having financial means, and asserting the fifth applicant would not have access to healthcare.

3. The Authority, in its reasons, identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act. The Authority referred to the submissions, and, insofar as they engaged with the delegate’s decision, had regard to the same. The Authority identified new information in relation to the instigation of the divorce and found that there were exceptional circumstances justified considering the same.

4. The Authority referred to the submission responding to the findings of the delegate that the fifth applicant had not experienced discrimination as a divorced woman in relation to property rights, employment, education, housing, voting, freedom of movement, or healthcare. The Authority noted that those findings were based on the fifth applicant’s responses to questions asked of her at the Safe Haven Enterprise visa interview. The Authority noted that, by way of response, the submission effectively raises new information in arguing that the delegate’s findings were superficial and did not give due consideration to her circumstances. The Authority referred, for example, to the fifth applicant stating that she had not been denied access to or refused medical treatment. It was submitted that only people with financial means can access medical treatment and that the applicants will not be able to afford it if they return.

5. It was in that context that the Authority identified that this and the other information provided at the top of page 4 of the submissions to the Authority, as summarised above, as to the various forms of discrimination about the fifth applicant is new information because it significantly adds to or changes the responses the fifth applicant gave at the interview without any explanation as to why the information could not have been provided at the time. It was in those circumstances the Authority was not satisfied that there are exceptional circumstances to justify consideration of this new information.

6. The Authority noted the fifth applicant was represented at the interview, and her representative provided post-interview submissions. The Authority was of the view that it was apparent that the questions that were asked were directed to findings about whether she had suffered discrimination as a divorced woman, or for any other reason. The Authority found the fifth applicant had ample opportunity to provide information which has now been put forward for the first time in the submissions dated 20 February 2017. It was in that context that the Authority also observed that, in some respects, that information was not consistent with the evidence that the fifth applicant had provided before the delegate.

7. The Authority summarised the first applicant’s claims, as well as the fifth applicant’s claims, the second applicant’s claims, and the claims advanced on behalf of the third and fourth applicants. The Authority did not accept that the Tehrik-i-Taliban Pakistan (“TTP”) sought to recruit the first applicant and tried to kill him when he refused to join them. The Authority did not accept that the first applicant’s family members would be perceived as opposed to the Taliban and at risk of harm. The Authority found it was not satisfied the first applicant was or could have been identified as a person who was non-denominational or a non-observant Muslim.

8. The Authority was not satisfied on the evidence that there is a real chance that the first applicant would be a target for violence for any of the reasons specified in s 5J(1) of the Act.

9. The Authority referred to gender issues and the fifth applicant initially stating she had no claims for protection. The Authority referred to the fifth applicant attending the Safe Haven Enterprise visa interview, where she was accompanied by a female representative, and indicating she was uncomfortable with a male interpreter. The Authority observed that it may also be that she was uncomfortable with a male interviewing officer, although this does not appear to have been raised. The Authority noted the interviewing officer encouraged the fifth applicant to express herself to the extent that she felt comfortable without actually offering to reschedule the interview or find a female interpreter. The Authority referred to the submissions to the Authority that this response was inadequate and that the fifth applicant could not freely express herself at the Safe Haven Enterprise visa interview but felt unable to say so.

10. The submissions in that regard had a heading “Interpreter Issues” and referred to wanting to raise concerns in regard to the specific request for a female interpreter to be provided during the interview given the nature of the fifth applicant’s claims and the stigma attached to the issues she wanted to discuss. The submissions refer to the case officer being made aware of the request but proceeding to conduct the interview with the assistance of a male interpreter. The submissions expressly acknowledge that the fifth applicant agreed to proceed and advised that she had discussed all topics that she felt she needed to at the conclusion of the interview. The submission contends that there was pressure to use the male interpreter but was not conducive to the fifth applicant rejecting the case officer’s request. It was asserted that the fifth applicant’s discomfort is particularly apparent given that the fifth applicant made a specific request to use a female interpreter. The submission continued that it was asked that the case officer have consideration of the intense social stigma faced by divorced woman in Pakistan which is exacerbated if the woman is the protagonist in the divorce proceedings. It was submitted that the mother did not feel comfortable speaking as freely as she would have with a female interpreter.

11. The submissions provided to the Authority after the letter sent on 23 January 2017, do address women in Pakistan but do not identify any significance in relation to the interpretation issue in respect of the new material put forward, nor is there any request in the submissions for the Authority to exercise any power under s 473DC of the Act.

12. The Authority observed that the case officer’s response to the fifth applicant’s complaint that she could not freely express herself was inadequate given that she had requested a female interpreter in the first place. The Authority noted that the fifth applicant had the benefit of legal representation at all stages of processing her application. The Authority observed that the representative had not taken the opportunity at any stage to elicit any specific individual claims that she had, or to provide further details that she may have been able to express at the Safe Haven Enterprise visa interview.

13. The Authority also considered it significant that at the Safe Haven Enterprise visa interview, when the fifth applicant was asked open questions about her fears, she repeatedly referred only to the fear of harm from the Taliban in relation to her son. It was only when pressed several times that the fifth applicant mentioned concerns about her former husband. The Authority found that even if the fifth applicant had felt uncomfortable to speak about details, which the Authority doubted very much, that her discomfort with a male interpreter would have prevented her from raising fears relating to her former husband or her marital status, at least broadly, if these were genuine concerns for her. The Authority referred to then considering the fifth applicant’s claims primarily as they were put forward at the Safe Haven Enterprise visa interview, having regard to her initial instruction that she did not wish to present claims of her own at all, and that the basis of her fear of returning to Pakistan was because she feared harm from the Taliban on account of her son.

14. The Authority then expressly referred to the claims now put forward by the fifth applicant that she faces harm as a divorced woman from her own family and from her former husband and his family, and that she would be subject to social stigma and discrimination, and possibly physical violence as a divorced woman. The Authority noted that the fifth applicant claims that after the divorce her former husband and his family harassed her, tried to gain access to her property, to interfere with the children, and to force her older daughter to marry a particular person.

15. The Authority found some of these claims were inconsistent. The Authority accepted the fifth applicant initiated the divorce through the explanation now advanced. The Authority found that the fifth applicant had been subjected to physical and other abuse by her former husband during their marriage. The Authority found that the credible evidence does not indicate that the fifth applicant was subjected to serious discrimination or harm as a divorced woman.

16. In relation to the fifth applicant claim about continuing harassment, the Authority found the fifth applicant had not provided detailed persuasive evidence, but only vague and non-unspecific claims about the subsequent problems after the divorce. The Authority was not satisfied the fifth applicant has in the past experienced harm from her former husband, his family, or society at large in relation to her status as a divorced woman, and the Authority was not satisfied there is a real chance she would in the future.

17. The Authority found the applicants do not face harm as non-denominational Muslims. The Authority did not accept the third and fourth applicants are at risk of harm of any kind as single women who are perceived to be westernised. The Authority found none of the applicants had converted to Christianity and did not claim to fear harm on the basis of their association with Christians in Australia.

18. The Authority did not accept, as a result of being failed asylum seekers that there is a risk of harm to the applicants. The Authority did not accept that the TTP tried to recruit the first applicant in March 2013, or that they threatened the first applicant, or that they threatened him or tried to shoot him when he refused to join them. The Authority did not accept the first applicant has been imputed to be an opponent of the Taliban because he refused to join them. The Authority did not accept that the first applicant faced harm of any kind for that reason from the TTP or similar group prior to his departure from Pakistan, or that there is a real chance that the first applicant would face harm from such groups if he were returned now or in the reasonably foreseeable future.

19. The Authority was not satisfied that the applicants face a real chance of harm on return to Pakistan because of the TTP, because the TTP sought to recruit the first applicant and now view him or other family members as opponents. The Authority found there is not a real chance that any of the applicants would be targeted and harmed by the TTP, or other Taliban or extremist factions for any reasons, including their actual or perceived religious beliefs or practices, including contact with a Christian community in Australia, the fact that they have spent time in a Western country and have become westernised, the fact that they have sought asylum in a Western country, or because they would for any reason be imputed to be opponents of extremist groups, having regard to the country information about the types of groups, individuals, and institutions which tend to be the target of such groups.

20. The Authority found the applicants do not meet the definition of “refugee” in s 5H(1) of the Act and found the applicants failed to meet the criteria under s 36(2)(a) of the Act.

21. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk the applicants will suffer significant harm. The Authority found the applicants did not meet the requirements for complementary protection in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the further amended application are as follows:

   1. The Immigration Assessment Authority (IAA erred in determining that there were no exceptional circumstances justifying the consideration of the ‘new information’ ‘at the top of page 4 of the IAA submission, addressing the delegate’s findings as to the various forms of discrimination’.

   Particulars

   
   

   a. The IAA decided there were not ‘exceptional circumstances’ justifying the consideration of this ‘new information’ as the Fifth Applicant ‘had ample opportunity to provide the information which has now been put forward for the first time in the IAA submissions’: CB 623-624 [9].

   b. By only considering whether the Fifth Applicant could have provided this ‘new information’ prior to the delegate’s decision, the IAA took an unduly narrow approach to the question of whether there were ‘exceptional circumstances’ to consider the ‘new information’.

   2. The IAA’s failure to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) (Act) was legally unreasonable.

   Particulars

   a. Firstly, the Fifth Applicant squarely raised claims before the delegate that she feared ‘persecution at the hands of her ex-husband, his family, male civilians and the larger Pakistan society’ in Pakistan because of ‘her direct experience as a victim of extensive and prolonged domestic violence at the hands of her husband, and substantial discrimination as a divorcee’: CB 504 [3].

   a. The IAA found that, at her interview with the delegate:

   i. the Fifth Applicant ‘indicated that she was uncomfortable with a male interpreter’ and that ‘it may be that she was also uncomfortable with a male interviewing officer’: CB 627 [31]; and

   ii. the delegate did not offer to ‘reschedule the interview or find a female interpreter’: CB 627 [31].

   b. The IAA found that ‘the interviewing officer’s response to [the Fifth Applicant’s] concern was inadequate – especially given that she had requested a female interpreter in the first place’: CB 628 [31].

   a. Having found that the delegate’s interview with the Fifth Applicant was ‘inadequate’, it was unreasonable for the IAA not to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Act.

   b. Secondly, the delegate accepted ‘that there may be a future risk of further harassment to [the Fifth Applicant], which could amount to significant harm from her former husband or members of his family if she were to return to Karachi’ but that it would be reasonable for her to relocate to L: CB 553 [7].

   c. The IAA decided the matter by rejecting that the Fifth Applicant faced a real risk of significant harm in her home area of K at the hands of her former husband or members of his family, which was a different basis than what was relied upon by the delegate: CB 629 [38].

Ground 1

1. In relation to the first ground, Mr Jahnke of counsel on behalf of the applicants submitted that the Authority had misapplied s 473DD of the Act by failing to have regard to both limbs of the provision. In that regard, Mr Jahnke expressed reference to the fact that in paragraph 9 there was no reference to whether the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

2. The Authority’s reasons in relation to the new information identified at the top of page 4 of the submissions, as summarised above, in relation to various forms of discrimination about the fifth applicant identified the significance of the information and expressly referred to the absence of explanation as to why the information could not have been provided at the time of the interview, and referred to the first applicant’s mother being represented.

3. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons should be read as a whole. It is apparent by reference to paragraph 10 that the Authority expressly referred to the second limb in relation to s 473DD of the Act. In these circumstances, there is no proper basis for the Court to infer that the Authority adopted an erroneous construction or failed to have regard to both limbs of s 473DD of the Act in holding that there were not exceptional circumstances to justify consideration of the new information. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Jahnke of counsel contended that it was legally unreasonable of the Authority not to consider exercising its power under s 473DC of the Act in circumstances where the Authority accepted a submission that the conduct of the interviewing officer in relation to the concern about a female interpreter provided a response that was described as inadequate. The submissions advanced to the delegate in relation to the use of the male interpreter expressly acknowledged that the fifth applicant agreed to proceed and that she advised that she had discussed all topics she felt she needed to at the conclusion of the interview.

2. Further, the Authority took into account, in addressing the use of the male interpreter, that the fifth applicant was represented and had ample opportunity to present any further material following the interview. Mr Jahnke submitted that, in the context of the criticism by the Authority as to the fifth applicant’s evidence being vague and unspecific about her subsequent problems following the divorce with her husband and the finding of the Authority that the new information was not one that met the requirements of s 473DD of the Act, that it was legally unreasonable for the Authority not to consider exercise of its power under s 473DC of the Act.

3. This is a case where the fifth applicant was represented both at the time of the interview and before the Authority. No request was advanced to the Authority to exercise, or consider exercise of, a power under s 473DC of the Act because of the use of a male interpreter. The Authority took into account the use of a male interpreter and I do not regard the matters referred to as giving rise to circumstances where it was legally unreasonable of the Authority not to expressly consider exercising the power under s 473DC of the Act.

4. I accept the first respondent’s submission that the Authority did not act in a legally unreasonable manner by not considering expressly the exercise of the power to get new information. The above express consideration as to the exercise of the power under s 473DC of the Act does not lack and evident and intelligible justification where the issue of the fifth applicant’s risk of harm from her former husband or members of a family was an issue that had been raised by the fifth applicant and where the fifth applicant had agreed to provide evidence in relation to her claims at the interview before the delegate with the male interpreter and where the fifth applicant was advised to alert the interpreter if, at any time, she did not feel comfortable with the male interpreter, and was provided with an opportunity to present her claims via alternative means if she wished, and where the fifth applicant confirmed that she had presented and discussed all of her claims at the interview despite the female interpreter not being available, and in circumstances where the fifth applicant did not seek to make further claims or elaborate on her evidence to the delegate after the interview, and where the fifth applicant made no request for a further interview as a result of the use of the male interpreter at the interview with the delegate. In these circumstances, no jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. Accordingly, as the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 September 2018