EBZ17 v Minister for Immigration
[2019] FCCA 79
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBZ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 79 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in failing to make a finding about all areas of Pakistan – whether the Authority erred by failing to determine risk in reasonably foreseeable future – whether the Authority erred in not considering expert report – whether the Authority erred in its reliance on the applicant’s failure to make a claim at entry interview – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA, 473CB, 473DB, 473DC, 473DD, pt.7AA Other materials cited: |
| Cases cited: AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 DLB17 v Minister for Home Affairs [2018] FCAFC 230 EBC17 v Minister for Immigration & Border Protection [2018] FCA 1836 MZZJO v Minister for Immigration & Citizenship (2014) 239 FCR 436 |
| Applicant: | EBZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2828 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 29 November 2018 |
| Date of Last Submission: | 29 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Buttar Caldwell & Co Solicitors |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2828 of 2017
| EBZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 15 August 2017. The Authority affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.
The applicant is a citizen of Pakistan who arrived in Australia on 28 September 2012 as an unauthorised maritime arrival. On 16 February 2016 he lodged an application for a protection visa. His claims were accurately summarised in the Minister’s written submissions as follows:
9.The applicant is a Pashtun, Syed and Shi’a muslim. He claimed to come from a village near Parachinar in the Upper Kurram District of the FATA. The village was one of the main entry points for the Taliban into Afghanistan and the applicant claimed that the Taliban were hostile to Shias in the area because they refused to allow the Taliban to use the area. More generally, the applicant claimed that the Taliban, Islamic State (IS) and various foreign military and intelligence forces were active in the area leaving to restrictions, and terrorist attacks against Shias.
10.The applicant operated a cosmetics shop from 2002 to 2011, having operated a food import business before that. His access in and out of the region was restricted, affecting his business, and contributing to the death of his daughter. In 2009, the applicant was stopped and detained by the Taliban try to enter Afghanistan to obtain goods for his business. The Taliban told him they would kill him because he was a Shi’a. He was taken to a small room and shown videos of killings and torture on Shias. The elders of the applicant’s area secured his release after 20 days after payment of one million rupees. The Taliban gave the applicant a letter by the Taliban stating that if he was caught again he would be killed.
11.The applicant did not return to Afghanistan after the incident and his business suffered. Six months later, the applicant’s brother, wife and child were kidnapped and detained for two days and then released.
12.The applicant feared harm from the Taliban and other groups targeting Shias. He travelled to the UAE in 2012 and while away his family received a threat of harm from the Taliban who had kidnapped him in 2009. The applicant also claimed to fear harm as Shi’a or Turi Shia’ from Parachinar and his perceived status as a spy, traitor or absconder by Pakistani authorities and the Taliban. He fears he would be kidnapped and ransomed on return due to perceived wealth after living in Australia for an extended period. He could not relocate in Pakistan as Shias are attacked through Pakistan and he would be easily identifiable as a Shi’a or Turi Shi’a by reason of this identity card, name, accent and appearance.
(Without alteration)
On 12 December 2016 a delegate of the Minister made a decision to refuse to grant the applicant a visa and that decision was referred to the Authority for review under s.473CA of the Migration Act1958 (Cth).
On 10 January 2017 the applicant’s agents sent a written submission to the Authority. In it they complained that the delegate had not considered the report of an expert, Mr Hussain, about the country circumstances pertaining in Pakistan. On 17 May 2017 the agents sent the Authority a supplementary report prepared by Mr Hussain. On 9 August 2017 the agents sent a further written submission to the Authority. On 15 August 2017 the Authority made a decision affirming the delegate’s decision.
Authority’s decision
Before dealing with the applicant’s claims, the Authority first considered the information that was before it and whether it was entitled to have regard to it in light of s.473DD of the Act. That consideration is the subject of one of the grounds in the application and I will deal with it later in these reasons.
The Authority accepted that the applicant was stopped and detained by the Taliban in 2009 but did not accept that he was tortured or shown videos of the killing and torture of Shia Muslims during detention or given a letter from the Taliban on his release.
It accepted that the applicant was known in his village as a small business operator but not that he was a high-profile businessman or that he was individually targeted by the Taliban for that reason. It also rejected the claims that the Taliban sought to recruit the applicant as an informant, otherwise had an interest in him and that his family received threats from the Taliban in 2012. It found that, at the time of his departure from Pakistan, the applicant was not of adverse interest to the Taliban or any other extremist Sunni group.
On the basis of the country information before it, the Authority was satisfied that there was a small, but real, chance of serious harm to the applicant as the result of sectarian attacks in Upper Kurram Agency; however, it found that that chance did not relate to all areas of Pakistan and, in particular, that it did not apply in Islamabad. In light of that, the Authority was not satisfied that the applicant met the criterion for the grant of a protection visa in sub-s.36(2)(a) of the Act.
The Authority found that the applicant did not satisfy the criterion in sub-s.36(2)(aa) of the Act because it would be reasonable for him to relocate to Islamabad where there was no real risk of significant harm.
For those reasons the Authority affirmed the decision of the delegate to refuse to grant the applicant a protection visa.
Consideration
The amended application contained five grounds, one of which had two parts. The applicant did not press ground 2(b) or 4.
Ground 1: failure to make finding about all areas of Pakistan
The Authority was required to consider whether the applicant satisfied the criterion for the grant of a protection visa found in sub-s.36(2)(a). That meant that it had to determine whether the applicant was a “refugee” within the meaning of the Act. Sub-section 5H(1)(a) of the Act relevantly provides that a person is a refugee if he or she is outside the country of his or her nationality and “owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”. That provision is taken from the definition of a refugee found in Article 1A(2) of the Refugees Convention[1].
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).
The phrase “well-founded fear of persecution” is defined in s.5J of the Act. Subsection 5J(1) provides:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(Emphasis in original, emphasis added)
The applicant argues that the Authority erred by failing to determine whether the real chance of persecution that existed in the Upper Kurram Agency related to all areas of Pakistan (the “receiving country”).
That contention is unarguable. The Authority found, at [61], that there was no real chance of persecution in Islamabad. Islamabad is in Pakistan. That finding meant that the real chance of persecution did not relate to “all areas” of Pakistan and required the conclusion reached by the Authority that the applicant was not a refugee and, in turn, that he did not satisfy the criterion in sub-s.36(2)(a).
Ground 1 is rejected.
Ground 2(a): failure to determine risk of harm in the reasonably foreseeable future
The applicant contends that the Authority erred by failing to determine whether the applicant faced a real chance of persecution in the reasonably foreseeable future.
It may be accepted that a failure to have regard to the chance of harm in the reasonably foreseeable future may amount to jurisdictional error and the Authority must not foreclose reasonable speculation of a chance of persecution emerging when considering the entirety of the material before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293-295.
In CPE15 v Minister for Immigration & Border Protection [2017] FCA 591, Mortimer J explained the future-looking test at [59]-[60]:
[59]In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality…To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable” ...
[60]The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. …
(Citations omitted)
The applicant’s arguments were based on the following propositions: first, the Authority did not expressly refer to the reasonably foreseeable future in considering whether the risk of harm applied to all areas of Pakistan. Secondly, although there was evidence before the Authority of a “downward trend of violence since 2013 [which was] reported to be evident across all provinces” (at [47]), the country information before the Authority indicated that the situation in the FATA and Pakistan was fluid. Thirdly, the Authority did not refer to the reasonably foreseeable future in explaining the statutory test at [36]. Fourthly, although the Authority referred to the foreseeable future in a different part of its decision (see at [56] and [60]), this reference highlighted the fact that the Authority did not refer to the reasonably foreseeable future in considering whether a real chance of persecution relates to all areas of Pakistan.
The definition of “refugee” in the Act does not contain the words “reasonably foreseeable future”. For that reason alone, the fact that the Authority did not use that phrase in determining whether the applicant met the definition of a “refugee” has no bearing on whether the Authority properly considered that issue. On the other hand, contrary to the applicant’s submission, the fact that the Authority did use words to the same effect (at [56] and [60]) indicates that it did consider whether there was a risk of harm in the reasonably foreseeable future rather simply in the immediate future.
The fact that there is evidence about the fluidity of circumstances in a receiving country does not change the analysis. The applicant did not contend that the material before the Authority only supported a conclusion that the applicant was a refugee. Put another way, he did not contend that the Authority’s conclusion was not open to it on the material and on a proper understanding of the definition of “refugee”.
The Authority properly set out the relevant test to be applied and made findings that were appropriately aimed at addressing that test. The applicant has not established that there was any error in the Authority’s application of the test and this ground must be rejected.
Ground 3: refusing to have regard to the expert report
Section 473DB of the Act requires, subject to pt.7AA, that the Authority is to review a fast track reviewable decision referred to it under s.473CA by considering the “review material” provided to the Authority under s.473CB without accepting or requesting new information and without interviewing the referred applicant. “New information” is information or documents that were not before the delegate and which the Authority considers may be relevant to the review. Section 473DD is an exception to the prohibition on the Authority considering new information. It provides:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
(Emphasis in original)
Much has been written about this provision. It suffices to note the following propositions that have now been established:
a)the requirements of ss.473DD(a) and (b) must both be met before the Authority is able to consider the new information;
b)what will amount to “exceptional circumstances” is inherently incapable of exhaustive statement;
c)the matters referred to in sub-ss.473DD(b)(i) and (ii) may be, but are not necessarily, relevant to the consideration of whether there are “exceptional circumstances;
d)it is an error to take too narrow a view of what will amount to “exceptional circumstances” but each case turns on its own facts.
See Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481; DLB17 v Minister for Home Affairs [2018] FCAFC 230; AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111; Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111.
As I have observed, the applicant sent the Authority a supplementary report by an expert, Mr Hussain. That report was not before the delegate when he made his decision and was treated by the Authority as containing “new information”. It was not satisfied that there existed exceptional circumstances to justify considering that new information and so did not consider it for the purposes of making its decision on review. It explained the reason for that conclusion in the following passages of its reasons:
[11]The ‘expert report’ forwarded to the IAA on 17 May 2017 was not before the delegate and is new information, although some of its contents were also included in a report submitted to the delegate that is already before me and which I have considered. The report’s author states that the report is based on his ‘specialised knowledge’ as evidenced by his résumé which is attached to the report. His résumé indicates that he is a permanent resident of Australia with ‘a background in Parachinar’ in Pakistan. He states that he holds a Bachelor of Laws, a Bachelor of Arts and a postgraduate diploma in International Human Rights Law. His employment history includes employment by NGOs in Afghanistan and settlement services organisations in Australia and Nauru, and a brief period ‘fundraising and representing Australia for UNHCR.’
[12]The report addresses the delegate’s decision and includes a range of country information about matters such the operations of militant groups and military forces in and around the applicant’s area of origin; the activities of religious extremist groups and individuals across Pakistan; attacks on Shias in Australia and other western countries; the international strategic context; the Pakistani government’s approach to terrorism; the security situation in Pakistan, the repatriation of IDPs to Kurram Agency; attitudes of Sunni Muslims to Shia Muslims in Pakistan; various images; and lists of attacks on Shias and others.
[13]Other than that part of the report directly addressing the delegate’s decision, the author has generally not articulated the connection between the information provided and the applicant’s individual claims. It is not evident how some information relating to areas other than the applicant’s home area, such as that relating to the alleged mistreatment of Shia Muslims in Australia and Sweden, is relevant to the applicant’s claims for protection. Similarly, the connection between reports of recent incidents relating to Shias, other religious minorities and other high profile individuals in areas in Pakistan other than Kurram Agency is not clear. The pertinence of information relating to the applicant’s home region other than attacks targeting Shias, including reports of attacks on members of the security forces and political leaders is similarly uncertain. The report includes information relating to recent attacks on Shias in the applicant’s home area. I am satisfied that the new information I have obtained in relation to recent attacks in Parachinar provides a clear indication of the current situation faced by Shias in Upper Kurram Agency.
[14]The report contains a number of unsubstantiated assertions, including about the likely consequences for the applicant. I note that there is other information already before me about many of the matters addressed in the report, including attacks perpetrated by Sunni extremist groups on Shias, other religious minorities and others in Pakistan; the Pakistani Government’s approach to terrorism, the activities of Sunni extremist groups, sectarian violence in Pakistan, the security situation in Pakistan, and the repatriation of IDPs to Kurram Agency. Having regard to the range of other information that is before me, including the new information I have obtained and the previous extensive report the author provided to the delegate; and the limited evident relevance of much of the information to the applicant’s individual claims for protection, I am not satisfied that exceptional circumstances exist to justify considering the new information.
The applicant contends that the Authority erred in this consideration. Taken at face value, the ground in the amended application is misguided. The Authority did not refuse to do anything. Rather, in accordance with the dictates of s.473DC of the Act, it did not consider certain of the information in the report because it was not satisfied that the requirements of s.473DD were met. The applicant’s submissions more accurately address this fact. There, the applicant argued that the Authority erred in three ways:
a)its conclusion was irrational or illogical;
b)the Authority failed to consider the option of considering part of the report (involving up to date country information on the security situation and attacks on Shias), while not considering the balance of the report; and
c)it failed to consider the matters in s.473DD(b).
The first of these was no more than an assertion. The applicant did not explain at all why the reasoning process set out at [11] to [14] of the Authority’s statement of reasons was either irrational or illogical. He did not explain why, in the face of the breadth and nature of the inquiry into whether there are exceptional circumstances, the Authority’s conclusion was not open for the reasons given by it. In those circumstances, this argument rises no higher than an expression of disagreement with the Authority’s conclusion and so is rejected.
The second argument, too, must be rejected. The Authority did have regard to different aspects of the report and applied different reasoning to each aspect. It noted, at [11], that some parts of the report were before the delegate. It identified the different topics addressed in the report: [12]. It noted the general, but not universal, failure of the author to articulate a connection between the information in the report and the applicant’s claims: [13]. It noted that a number of the assertions by the author were unsubstantiated: [14]. Finally, it noted that there were parts of the report that, while relevant, were the subject of a range of other information before the Authority: [13] and [14]. In light of this, I am not satisfied that the Authority did fail to consider whether it could consider parts of the report and reject others.
The third argument must also be rejected. First, the Authority was not required to consider the application of s.473DD(b) because both parts of s.473DD must be met before the Authority can consider new information and the Authority found that s.473DD(a) was not met. Secondly, the Authority did not take an overly narrow view of the meaning of “exceptional circumstances”. Its reasoning shows that it addressed the cogency of the report (by reference in part to the lack of reasoning in it and the lack of apparent relevance of some of the material in it) as well as the fact that some of the information in it was also dealt with in other material available to the Authority. This was not a case where, as in BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221, the Authority considered only whether the information was available prior to the delegate’s decision and proceeded on the basis that that was determinative of whether there were exceptional circumstances.
Ground 3 is rejected.
Ground 5: MZZJO v Minister for Immigration & Citizenship
In MZZJO v Minister for Immigration & Citizenship (2014) 239 FCR 436 the Tribunal made credit findings against the applicant. Those were based in part on the Tribunal’s assessment of the appellant’s evidence about agnosticism as well as inconsistencies identified by the Tribunal between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview. The Full Court of the Federal Court said relevantly:
[56]On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
[57]Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
At [23] of its reasons the Authority set out its findings about the applicant’s claims to have been detained by the Taliban. While it accepted that claim, it did not accept that, during that detention, the applicant was tortured or shown videos of the killing and torture of Shia Muslims, that he experienced physical and mental torture during his detention. The reason it gave for rejecting those elements of the claim was the “changing nature of the applicant’s evidence over time”. The Authority had explained that in the previous paragraph:
22.While the applicant claimed in his entry interview that he was kidnapped by the Taliban in 2009 and released after an unspecified period when a ransom was paid, he added in his subsequent written applications that he was held for 20 days in a small, airless room and given very little food. He claimed he was shown videos of the killing and torture of Shia Muslims in an attempt to mentally torture him. On his release, he was given a letter in which the Taliban threatened to kill him if they caught him again. He claimed during the SHEV interview that he had suffered extreme physical and mental torture during his detention and had been traumatised because of the severe suffering he experienced. He said he was kidnapped in Afghanistan approximately 26 km from the border with Pakistan.
The applicant argues that the Authority fell into the error identified by the Court in MZZJO. I do not accept, however, that there is any binding statement of principle in MZZJO relevant to this case. In particular, there is nothing in that decision to the effect that the Authority will fall into jurisdictional error if it bases a finding of fact on what an applicant did or did not say at an entry interview. Farrell J explained the relevant part of that decision in EBC17 v Minister for Immigration & Border Protection [2018] FCA 1836:
[22]The counsel to caution by decision-makers in MZZJO v MIBP at [56]-[57] is well placed, especially in a context such as a review under Part 7AA of the Migration Act, where review “on the papers” will occur. But those circumstances do not negate an expectation that an applicant will disclose the nub of their claims to protection at the interview. Further, those passages of MZZJO v MIBP relied on by the appellant are obiter dicta and do not suggest that the need for caution which the Full Court counselled rises as high as a mandatory consideration: there is nothing in the subject matter, scope or purpose of the Migration Act or Part 7AA in particular which would suggest that.
In any event, the Authority’s reasons did not turn on what was or was not said at the entry interview, but on the fact that his evidence about what occurred during the detention changed. Contrary to the applicant’s submission in this Court, there were changes to his evidence, as explained at [22] of the Authority’s reasons. Those changes may not have led every decision-maker to the conclusion that the additional details were not credible; however, that does not mean that the Authority acted beyond jurisdiction.
For those reasons, the dicta in MZZJO does not apply on the facts of the case and the ground is rejected.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 January 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Expert Evidence
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Jurisdiction
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