EBO17 v Minister for Immigration

[2018] FCCA 437

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 437

Catchwords:
MIGRATION – Immigration Assessment Authority – application for subclass 785 temporary protection visa – whether the authority failed to consider the whole case of the applicant – amended application dismissed.

Legislation:

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

Cases cited:

DGZ16 v The Minister for Immigration & Anor [2018] FCAFC 12

Applicant: EBO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2813 of 2017

Judgment of: Judge Street

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Parish Patience Immigration Lawyers

Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 26 February 2018 initialled and dated by the Court and the Court dispenses with the need for the electronic filing of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2813 of 2017

EBO17

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 made on 18 August 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan and his claims were assessed against that country. The applicant claimed to fear harm in the nature of suffering the same fate as his kidnapped uncle. The applicant feared sectarian groups like the Taliban and the Lashkar-e-Jhangvi (“LEJ”) and Islamic State or ISIS which have threatened and perpetrated attacks against Shia Muslims throughout the country. The applicant also claimed to fear Sunni Muslims who have been displaced from Parachinar and who are now working with these groups and who will target him as a Shia Muslim from Parachinar. The applicant also claimed to fear he will be targeted by these actors because he is a Shia Muslim pursuing higher education from a wealthy family whose father was a famous and prominent elder.

3. The applicant also claimed to fear that if he returns to Pakistan he will suffer persecution and serious harm as a returnee from Australia who will be treated as an infidel and a spy for Westerners and Australians and could be an easy target for the Taliban. The applicant alleged that the Pakistan Army are in collusion with the Taliban and that the police are too scared of the Taliban to take action.

4. The applicant was found to be a Shia Muslim and an ethnic Pashtun of the Bangladesh tribe who originates from a particular neighbourhood of Parachinar City. The applicant arrived in Australia by boat on 22 March 2013 and was given an entry interview on 28 March 2013. On 19 May 2016, the applicant applied for a subclass 785 temporary protection visa. On 9 November 2016, the delegate refused to grant the applicant the protection visa, finding the applicant failed to meet the criteria under the Act.

The Authority’s decision

1. By letter dated 17 November 2016, the applicant was informed by the Authority that the application for the protection visa 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 applicant an opportunity to put on new information and submissions.

2. The applicant did, through his representative, put on submissions dated 7 December 2016. Those submissions addressed the delegate’s findings in relation to specifically the applicant’s credibility and the finding of the delegate regarding whether he was threatened by phone calls in 2010. The submissions referred to the fact that the delegate had pointed out there was a failure to raise the threatening phone calls in 2010 at the entry interview, and the response of the applicant was summarised in the submissions that the applicant was exhausted and suffering stress, tensions and anxieties.

3. It was submitted that this had impacted on his capacity to make full disclosure of claims at the entry interview and that he would have been asked to provide a brief summary of his claims. Reference was also made to the significant amount of time and numerous life-changing events that had occurred between the date of the threats and the entry interview. The submission advanced that the entry interview should be given little weight in considering the applicant’s protection claims. Reference was also made to authority decisions advancing a proposition that may mean no probative weight should be attached to such an initial testimony.

4. The Authority in its reasons identified the background to the visa application and having regard to the information given to the Authority by the Secretary under s 473CB of the Act. The Authority referred to the submissions provided by the applicant’s representative dated 7 December 2016 and stated that for the most part, this engaged in argument with the delegate’s decision based on the information which was before the delegate. The Authority expressly said that to that extent the Authority had regard to it. The Authority then dealt with the other new matter and gave reasons consistent with considering both limbs of s 473DD of the Act.

5. The Authority also identified having regard to new country information consistent with s 473DE(3)(a). The Authority summarised the applicant’s claims and set out the relevant law. After identifying the applicant as being a national of Pakistan and the region from which the applicant came, the Authority expressly referred to the applicant’s written claims that he had been living and studying in a particular location. The Authority then proceeded to refer to the Temporary Protection Visa (“TPV”) interview that the applicant gave broadly similar evidence. The Authority referred to country information and further information provided at the TPV interview.

6. The Authority referred to what occurred with the delegate raising a further issue in relation to the name of a particular person and the Authority did not accept the applicant knew the particular person or that the applicant received threatening telephone calls in 2008 following the particular person’s death. The Authority referred to the applicant attending a particular college between 2007 and 2010. The Authority then referred to the March 2013 entry interview in which the applicant stated he had received threatening phone calls in Parachinar which threatened that the callers could kill him at any time, that he received three of these calls in 2009, and stated that his uncle had been abducted in Peshawar in November 2009.

7. Whilst the Authority expressed doubts, the Authority was willing to accept that the applicant’s uncle was abducted in Peshawar in November 2009 and that the applicant spoke to the uncle’s abductors by mobile telephone. The Authority was also willing to accept that the price of releasing the uncle was the subject of a negotiation during which the applicant’s life was threatened. The Authority found that if the applicant had been the target of these men, the applicant would have been abducted in Peshawar. The Authority was not persuaded that these men told the applicant that they would abduct him when they saw him returning to the Pack Hotel because he was with his sister or that the applicant avoided being kidnapped because he was in a store at the time his uncle was abducted.

8. Given the doubts about the applicant’s credibility and the applicant saying he could not be sure who the callers were and given the extent to which criminal gangs were thought to be behind most kidnappings in Peshawar, the Authority found it too speculative to conclude that the uncle was kidnapped by The Taliban and/or Sunnis’ displaced from Parachinar or by anyone other than criminals acting for the purpose of financial gain.

9. The Authority then turned to the applicant’s written claims that in 2010 he enrolled in a college but did not complete his study and that in May or June 2010 he began work as a taxi driver in Parachinar and that he sometimes supported the Haidri Blood Bank group by driving employees around to different areas. The applicant alleged some time towards the end of 2010 he received threatening telephone calls from the Taliban as he was supporting the Shia community and they said they would kill him as an infidel.

10. The applicant alleged he decided to leave the country and went to the United Arab Emirates where he worked as a taxi driver until January 2013. The applicant alleged he was too scared to go back to Parachinar but went back just to see his family and was only there for a few days. The applicant alleged he was too scared of the Taliban to stay living there and went to Islamabad and departed by air with the intention of travelling to Australia. The Authority made reference to the applicant having given similar evidence at the TPV interview where when asked how long he spent in Parachinar after returning from the UAE he estimated it was around 25 to 28 days rather than a few days.

11. The Authority made reference to the applicant being asked if the telephone threats he had previously received were all from the same person and he said they came from an unknown number and that the person had a different accent and he could not recognise if it was the same person. The applicant said the caller had asserted the applicant was working with the Shia community and that he had already been targeted and that they knew where he was staying. The applicant believed the callers were saying that they would kidnap and kill him and that sort of thing. The Authority referred to the applicant being asked how many times these calls were received and he said, “two or three” and that he remained in Parachinar for a further two to three months but he was not doing much although he continued to assist the Haidri Blood Bank. The Applicant stayed in areas close to Parachinar and did not go to any dangerous areas.

12. The Authority noted according to the TPV application the applicant departed for the UAE on 3 February 2011. The Authority made reference to the applicant’s passport being issued on 28 September 2010, which suggested that the applicant was making plans to travel abroad around this time. The Authority then expressed a number of concerns, which raised doubts about the credibility of the applicant’s claims to have decided to travel to the UAE after receiving threats in late 2010 in relation to assisting the Haidri Blood Bank.

13. The Authority made express reference to the delegate having put to the applicant at his March 2013 interview that he had said that his uncle was abducted in 2009 and that he had received threatening phone calls while in Parachinar and that when asked when was the last time he received threatening phone calls he had said three times in 2009. The Authority noted it was put to the applicant that this raised doubts about his claims to have been threatened in 2010.

14. The applicant had responded that there were different calls made in relation to his work with the Haidri Blood Bank in 2010 and in relation to his uncle in 2009. The Authority also noted the applicant’s explanation that he was told he could give more information at the next interview.

15. The Authority then made reference to the departmental entry interview almost a week after the applicant arrived in Australia. The Authority identified having regard to the audio recording of that interview and the applicant being informed that he was expected to give true and correct answers to the questions asked and that if the information he was to give at any future interview was different from what was said at the entry interview this could raise doubts about the reliability of what he said.

16. The Authority summarised what occurred at the entry interview and the applicant’s responses in relation to the 2009 threats. The applicant, when asked if anything happened to him, said he had left the country, the UAE, because of the 2009 incident. The Authority took into account the applicant’s age, the time of arriving into Australia and that he was well-educated and well-travelled and also how the applicant sounded in the entry interview. The Authority accepted that the entry interview was one where the applicant was told to be brief and began speaking about his uncle.

17. The Authority found it was plain that the applicant stated the last time he had been threatened was in 2009 and that this and his uncle’s abduction in 2009 led him to decide to depart for the UAE. The Authority found the applicant’s evidence at the entry interview raises serious doubts about the credibility of his current claims to have been working as a taxi driver in 2010 and to have received threatening phone calls in late 2010 for reasons of his having driven persons working for the Haidri Blood Bank.

18. The Authority also took into account available country information as raising serious doubts about the plausibility of the applicant’s claim to have been threatened in such circumstances in 2010. The Authority accepted the applicant’s family was wealthy but did not accept the applicant’s father or applicant’s family were famous or prominent in the community more broadly.

19. The Authority was not satisfied the applicant can be considered anything more than a low profile figure, nor was the Authority persuaded that his profile would have been raised in any significant way if he had worked for the Haidri Blood Bank at the time driving their workers in the manner he claimed. The Authority found that the applicant’s claim to have been threatened in 2010 for assisting the Shia community by driving Haidri Blood Bank workers implausible.

20. In light of the credibility findings the Authority did not accept the evidence he was working as a taxi driver in Parachinar in 2010, nor did the Authority accept that he was driving Haidri Blood Bank workers or that he was involved with this organisation in any way. The Authority was not satisfied the applicant, if he returned to Pakistan, would face a real chance of harm on the basis of his association with the Haidri Blood Bank.

21. The Authority did however accept that there was a small but nonetheless real chance of the applicant being killed or seriously injured in an attack for the reason of being a Shia Muslim were he to return and reside in Parachinar.

22. The Authority then turned to the consideration of s 5J(1)(c) of the Act. The Authority was not satisfied that there is a real chance the applicant would, if he returned to Islamabad, face a real chance of harm of any of the kind in the foreseeable future for reason of his being a Shia Muslim, and/or his being a Shia Muslim Pashtun from Parachinar, of the Bangash tribe or as a perceived member of the Turi tribe, and/or for reason of any past or future studies that may be undertaken, and/or for reason of his family’s wealth, and/or for any reason associated with his uncle’s 2009 abduction and the threats made against his life in 2009 by his uncle’s kidnappers.

23. The Authority found that even if it became known to others that he had returned from Australia, a western country where he sought asylum, the Authority was not satisfied that the applicant would face a real chance of being treated as an infidel and a spy for western countries on this basis or that he would face a real chance of being harmed on this basis. The Authority was not satisfied the applicant faced a real chance of harm of any kind even if such concerns were considered in combination with his being a Bangash Pashtun Shia Muslim from Parachinar who has and may again pursue higher education, and whose life was threatened by kidnappers in 2009.

24. Having considered the circumstances in their entirety and taking into account country information in relation to Islamabad, the Authority was not satisfied the applicant would in the foreseeable future face a real chance of experiencing harm of any kind for any reason if he were to return to and reside in Islamabad, a location which the Authority found he could return to directly by air. It was in these circumstances the Authority found the requirements of the definition of refugee in s 5H(1) of the Act and the criteria under s 36(2)(a) of the Act were not met.

25. The Authority then turned to the issue of complementary protection and considered the reasonableness of the applicant being able to relocate to Islamabad. The Authority was not satisfied that the applicant would face a real risk of harm of any kind in Islamabad and having regard to the applicant’s overall circumstances, including the livelihood and security situation in Islamabad, was satisfied that it would be reasonable for the applicant to relocate to Islamabad.

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

The grounds

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

   Ground 1

   The Authority denied procedural fairness to the Applicant.

   Particulars

   (a) The Authority refused to consider written submissions made on the Applicant's behalf because they were more than five pages in length. The Authority relied on a Practice Direction 1 dated May 2016 made by the President of the Administrative Appeals Tribunal under s473FB. The making of the Direction in so far as it purports to limit submissions to no more than five pages and to return longer submissions to an applicant is beyond the power given in s473FB to make Directions.

   (b) In the alternative, limiting submissions to five pages was an unreasonable exercise of the power to issue practice directions.

   Ground 2

   The Authority erred by failing to consider the full case put on behalf of the Applicant by ignoring the submissions of the Applicant's representative in relation to the “entry interview” (CB 290-291) and the Applicant's credibility in respect of his claim to have been threatened by the Taliban in 2010.

Ground 1

1. Mr Jones, the solicitor who appeared for the applicant accepted that this Court was bound by the decision in DGZ16 v Minister for Immigration & Anor [2018] FCAFC 12 and that in those circumstances ground 1 must fail. Mr Jones formally submitted that that decision is wrong. This Court is bound by the legal principles in the said Full Court decision. That was a proper course for Mr Jones to take and he has, thereby, preserved his client’s position in respect of that alleged error.

2. As this Court is bound by the decision in DGZ16, no jurisdictional error is made out by ground 1. The Court also notes that in fact in the present case, the submissions were in excess of five pages and were considered by the Authority.

Ground 2

1. In relation to ground 2, Mr Jones took the Court to the Authority’s reasons and in particular the finding in relation to relocation and the reference to the written submissions in paragraph 3 of the applicant’s migration representative and to the adverse finding in relation to the 2010 alleged telephone calls. Mr Jones took the Court to the submissions of the representative made to the Authority and in particular, the arguments advanced as to why the entry interview should not be given probative weight.

1. Mr Jones argued that there had been, in substance, a failure to consider the totality of the applicant’s claims by failing to take into account the applicant’s representative’s submissions in relation to the entry interview. Mr Jones argued that the representative’s submissions drew attention to a significant body of authority cautioning against reliance on such interviews and also referred to the entry interview observation of the interviewer directing the applicant to be brief.

2. Mr Jones argued that there had been no reference to the submissions on this point and that there had been authorities footnoted by the migration agent’s representative in those submissions. Mr Jones argued there had been a failure to consider the full extent of the representative’s arguments in the circumstances of the present case in respect of the 2010 telephone calls and that this was material to the applicant’s claims and the assessment of whether the applicant met the criteria under the Act.

3. Whilst it is the case that the Authority’s reasons do not refer to the authorities, the reasons do reflect considering the substance of the submissions. The Authority’s reasons refer to whether or not the entry interview should be taken into account in light of the express reference and overlap of topics in respect of the entry interview, as referred to in the submissions dated 7 December 2016 and summarised above and the findings of the Authority in relation to the 2010 telephone calls as summarised above.

4. I do not accept that there was a failure by the Authority to have regard to the whole of the applicant’s representative’s submissions in relation to the entry interview in respect of the adverse findings concerning the 2010 telephone calls. Further, the reference in the Authority’s reasons in paragraph 3 supports the Authority having had regard to the submissions in relation to this issue concerning the credibility of the applicant in respect of the 2010 telephone calls.

5. Accordingly, I do not accept that there was a failure to consider the totality of the applicant’s claims or a failure to consider the applicant’s full case in relation to the 2010 telephone calls. The Authority made adverse credibility findings in that regard that were open to the Authority for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification. It was not necessary for the Authority to expressly refer in its reasons to every detail in the submissions and that includes the footnoted authorities.

6. Had there been a failure to consider the submissions, I would however have accepted Mr Jones’ argument that it was material to the assessment of the applicant’s claims. For the reasons given, there was no such failure, to consider the full case put on behalf of the applicant and that the Authority made adverse findings which were open for the reasons given by the Authority, no jurisdictional error as alleged in ground 2 is made out.

7. Accordingly, the amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  9 April 2018