Ecp16 v Minister for Immigration

[2019] FCCA 985

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECP16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 985

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the Immigration Assessment Authority misapplied or misconstrued s.5J(1)(c) of the Migration Act 1958 (Cth) – whether the Immigration Assessment Authority properly considered the question of relocation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 476

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1044

SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263

Applicant: ECP16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 3732 of 2016

Judgment of: Judge Emmett

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Sydney

Delivered on: 11 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Stephen Tully

Solicitors for the Applicant: Ryburn Solicitors

Solicitors for the Respondents: Ms Sharon Burnett
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3732 of 2016

ECP16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 30 November 2016 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 30 August 2016 refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The applicant is a citizen of Pakistan and of Shia Muslim faith and Hazara ethnicity, who fears harm from Lashkae-e-Jhangvi (“LEJ”) and various Sunni extremist groups in Pakistan.

3. The background, the applicant’s claims and the Authority’s decision are accurately identified in the first respondent’s submissions as follows:

   “2. The applicant is a citizen of Pakistan who, relevantly:

   (a) arrived in Australia on 11 November 2012 as an Unauthorised Maritime Arrival; and

   (b) met the requirements of the definition of a "fast track applicant": s 5( 1 )(a)(i)-(iii) and therefore his application was subject to, and governed by, Part 7 AA of the Migration Act 1958 (Cth) (Act).

   3. The Decision was made pursuant to s 473CC of the Act. This Court has jurisdiction to hear the application under s 476(1) of the Act because the Decision is a "migration decision" within the meaning of s 5(1) of the Act.

   4. On 23 December 2016, the applicant made an application for judicial review in this Honourable Court. On 28 March 2019, the applicant filed and served written submissions (AS). These submissions respond to the grounds contained in the application for judicial review as refined in the Applicant's Submissions.

   5. For the reasons outlined below, the Court should dismiss the application with costs.

   Claims before the IAA

   6. The applicant claimed to fear harm from the Lash-e-Jhangvi (LEJ) and Wahhabi extremists or other Sunni groups by reason of his Hazara Shia ethnicity/religion, imputed political opinion, failed asylum seeker status and having lived in a Western nation. Relevantly, the applicant claimed that:

   (a) in 2009, he had received a death threat by telephone from an unknown person whom he believed to be a member of the LEJ. A few months later he left Quetta and went to Iran and worked as a tailor on a valid visa. For a period of about two years, he returned to Pakistan from time to time from Iran to extend his visa;

   (b) in about September 2010, when he was back in Quetta to renew his visa, he witnessed a bomb blast in his hometown;

   (c) in 2011, the bus on which he was travelling was shot at. He was returning to Quetta from Taftan, a village in Pakistan near the border of Iran. The passengers on the bus were mainly other Hazaras. After this incident, he heard from his family that in that same year a bus load of Hazara people were taken from a bus and attacked;

   (d) Hazaras continued to be targeted for harm in his hometown. The applicant referred to various instances of targeted killings and attacks on Hazaras from 2000 onwards; and

   (e) he cannot relocate to another part of Pakistan because Sunni extremist groups are active all over Pakistan and he would be persecuted throughout Pakistan as a Hazara Shia.

   IAA decision

   7. In addition to the information provided to it by the Secretary under s 473CB of the Act, the applicant, via his representative, lodged additional material with the IAA.

   8. The IAA found that numerous pieces of information submitted by the applicant's legal representative to the IAA to be "new information", and was not satisfied that there were exceptional circumstances justifying its having regard to the new information.

   9. In respect of a statutory declaration of the applicant dated 16 September 2016 (IAA Statement) supplied by the applicant's representative to the IAA, the IAA found that it repeated the applicant's claims before the Delegate, added additional detail to those claims and was referrable to, or arose from the material before the Delegate (the fear to return to Pakistan as an asylum seeker) and therefore was not new information and accordingly considered it.

   10. As to the applicant's factual claims, the IAA made the following findings and comments:

   Failed asylum seeker, returning from the west

   (a) the IAA was mindful of the applicant's time in, and connection with Australia. However, on the evidence available, it was not satisfied that there was a real chance the LEJ and/or other Sunni militant groups would become aware of that and target the applicant for that reason;

   (b) as the applicant claimed he departed Pakistan lawfully on a genuine Pakistani passport, on the evidence before it, the IAA was not satisfied that Pakistani authorities would suspect the applicant had committed any offence of unlawful emigration;

   (c) on the basis of independent country information, the IAA noted that people who had spent time living in western countries are not subject to societal discrimination on return to Pakistan;

   (d) the IAA was not satisfied that there was a real chance the applicant would suffer serious harm from Pakistan authorities, the LEJ, other Sunni militant groups and or Pakistani society because he would return to Pakistan as a failed asylum seeker after having lived in Australia, now or in the reasonably foreseeable future, if he returned to Pakistan;

   Hazara Shiafrom Balochistan province

   (e) the IAA accepted that the applicant:

   (i) is a Hazara Shia from his hometown in Balochistan;

   (ii) received a death threat in 2009 and was involved in a shooting in 2011;

   (iii) knows of Hazara Shias who were harmed in his hometown; and

   (iv) has a genuine, subjective fear for his wellbeing in his hometown because he is a Hazara Shia;

   (f) the IAA was satisfied that the applicant had a well-founded fear of persecution from the LEJ and/or other Sunni militant groups for the combined reasons of his race and/or religion if he returned to his hometown in the Balochistan province;

   Relocation

   (g) on the basis of independent country information, the IAA did not accept that Pakistani police do not protect Hazaras or Shias. It was satisfied that the applicant could travel to and reside in Lahore. Relevantly, the IAA cited independent country information noting that there had been no mass attacks against Shias in Lahore since 2010 and targeted attacks have only been against Shia political and religious leaders, doctors and lawyers. There were no reported attacks targeting Hazaras;

   (h) the IAA considered the applicant's personal circumstances including his level of education and experience as a tailor in Pakistan and Iran. The IAA found that if the applicant relocated to Lahore his parents and remaining siblings would continue to reside in their hometown and the applicant would seek to provide economic support to them. The IAA noted that Punjabi is the main language of Lahore, that the applicant, as well as understanding Hazaragi, understood Urdu (the national language of Pakistan) and would be able to communicate in Lahore to find work and accommodation. The IAA also noted that the applicant had shown himself to have the ability to adapt to life in Iran and Australia;

   (i) the IAA considered the applicant's claims individually and cumulatively, as well as considering his personal circumstances, and was not satisfied that the applicant had a well-founded fear of persecution from the LEJ, Wahhabi extremists, SSP, Jesh Mohammad, ASWJ, TIP or other Sunni militant groups and/or the Pakistani authorities/society now or in the reasonably foreseeable future if he returned to Pakistan and relocated to Lahore.

   11. Accordingly, for the reasons outlined above, the IAA affirmed the decision not to grant the applicant a protection visa.”

   (Footnotes omitted)

4. The applicant was represented before this Court by Mr Stephen Tully, of counsel. Mr Tully confirmed that the applicant continued to rely on the grounds of his initiating application which were as follows:

   “1. The IAA failed to address and/or has misconstrued one of the applicant's claims.

   Particulars

   a. The applicant expressly made a distinct claim to have a well-founded fear of persecution by reason of being a failed asylum seeker.

   b. At [15]-[17] of its decision, the IAA only considered the applicant's other claims to have a well-founded fear of persecution as a returnee from the West and as someone who resided in Australia.

   c. The applicant's claim identified at (a) above was not expressly or impliedly considered elsewhere by the IAA in its decision.

   2. The IAA misapplied or misconstrued s 5J(1)(c) of the Migration Act 1958 (Cth).

   Particulars

   a. At [24]-[28] of its decision, the IAA was satisfied that the applicant could relocate by travelling to and residing in Lahore where he would not have a well-founded fear of persecution.

   b. The IAA was required but failed to consider whether Lahore was a safe area that the applicant could safely and legally access.

   3. The IAA failed to consider a claim made by the applicant or an integer of his claims.

   Particulars

   a. The applicant claimed that in 2009 he received a telephone call from a member of the Lashkar-e-Jhangvi (LEJ) who threatened him with death if he did not leave Quetta because he was a Hazara businessman.

   b. At [20] of its decision, the IAA accepted this claim.

   c. At [21] of its decision, the IAA was satisfied that the applicant had a well-founded fear of persecution from the LEJ if he was to return to his hometown in Balochistan province.

   d. the IAA failed to consider, in its refugee and complementary protection assessment of the applicant should he relocate to Lahore, whether there was a real chance of harm were they LEJ to make death threats by telephone on the basis that – as accepted by the IAA at [37] of its decision – the applicant was a Hazara businessman.”

Ground 1

1. Mr Tully submitted that the complaints in Ground 1 related to a failure by the Authority to consider the applicant’s claim to fear persecution in Pakistan as a failed asylum seeker.

2. Mr Tully referred the Court to the applicant’s statutory declaration, dated 16 December 2016, in which he claimed to fear harm as “part of the group of failed returned asylum seekers from western nations or for being part of the group of people with foreign connections in a western nation…or for having lived in a western nation or for being someone with foreign connection in a western nation…or for being a failed asylum seeker from a western country or someone with western connections.”

3. The Authority referred in terms to the applicant’s claim to fear returning to Pakistan “as a failed asylum seeker returning from a western nation”.

4. Under the heading “Failed asylum seeker, returnee from the West”, the Authority again referred to the applicant’s claim to be targeted for harm “as someone who applied for asylum and seen as someone to be associated with the West”. The Authority went on to state that it understood the association with the West to be a reference to Australia because that is where the applicant was residing. The Authority found that having resided in Australia would not materially affect the applicant’s profile as a Hazara Shia from his hometown. The Authority was not satisfied that having lived in Australia would result in a real chance that the LEJ and/or other Sunni militant groups would become aware of and would target the applicant for his individual or cumulative characteristics.

5. The Authority had regard to country information before it that indicated that there was no information that returnees are punished on return to Pakistan, although they may be questioned by authorities in relation to being wanted for crimes. The Authority found that there was no evidence before it that the applicant had committed any offences in Pakistan. Further, the Authority referred to country information that revealed that people who have spent time living in western countries are not subject to societal discrimination on return to Pakistan.

6. The Authority concluded that there was not a real chance now or in the reasonably foreseeable future that the applicant would suffer harm in Pakistan from authorities, the LEJ, Sunni militant groups or Pakistan society because he would return to Pakistan as a failed asylum seeker after having lived in Australia.

7. In the circumstances, the Authority clearly considered the applicant’s claim to fear harm as a failed asylum seeker returning from a western nation and was not satisfied that the applicant was at risk of harm for that reason.

8. The applicant’s claim to fear harm as a failed asylum seeker was always connected to having foreign connections in a western nation. The applicant made no stand-alone claim to fear harm only by reason of being a failed asylum seeker. In those circumstances, there was no obligation on the Authority to get any further information from the applicant in relation to his risk of harm only as a failed asylum seeker, if returned to Pakistan.

9. To the extent that Mr Tully further submitted that there was some inconsistency in the Authority’s finding that the applicant was not at risk of serious harm as a failed asylum seeker having lived in Australia, and its finding in relation to that claim when considering complementary protection. In considering complementary protection, the Authority referred to the applicant as being “a failed asylum seeker, or having resided in Australia.”

10. However, that alleged inconsistency is not made out on a fair reading of the reasons as a whole. In considering complementary protection, the Authority stated as follows:

    “I found above the applicant singularly or cumulatively does not have a real chance of serious harm from the LEJ; Wahhabi extremists; SSP; Jesh Mohammad; ASWJ; TTP, or other Sunni militant groups and/or the Pakistani authorities/society on the basis of returning to Pakistan as a failed asylum seeker, or having resided in Australia. For the same reasons … I am not satisfied the applicant will face a real risk of significant harm if he is removed Pakistan.”

11. To read the reasons otherwise is to approach judicial review of those reasons with an eye too keenly focused on error. It is well established that the Court should give the administrative decision a beneficial construction and not approach its decision with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (“Wu Shan Liang”); Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]).

12. In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014) per Siopis, Perram and Davies JJ at [13]:

    “13. The opening words of [55] tend to suggest that he did indeed consider the DIAC note (‘Notwithstanding the advisers [sic] submission....’) for they are apt to suggest that Mr Karas was aware of Mr McCrudden’s submission and, therefore, it might reasonably be presumed, with its contents. That conclusion is also buttressed by a reference in [16] to ‘the claimant’s submissions’ having included ‘information regarding and addressing the situation of the Taliban and Hazaras in Afghanistan...’. Furthermore, this view of affairs receives support from the well-known principle that decisions of administrative decision makers such as Mr Karas (assuming that is what he is) are not to be read with an eye closely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.”

13. Otherwise, the findings made by the Authority were open to it on the evidence and material before it and for the reason it gave. The findings were based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-509 at [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 at [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30])

14. Accordingly, Ground 1 is not made out.

Ground 2

1. In support of Ground 2, Mr Tully submitted that the Authority had failed to consider whether the applicant could “safely and legally” relocate to Lahore.

2. Under the heading “Relocation”, the Authority had regard to the applicant’s claims that he was not safe anywhere in Pakistan as a Hazara Shia because the LEJ and other Sunni militant groups are everywhere in Pakistan and target Hazara Shias all over Pakistan. The Authority noted the applicant’s evidence to the Delegate that because of his facial features, he would be easily identifiable as a Hazara Shia and that his ID card would identify him as a Hazara Shia from his hometown.

3. The Authority had regard to country information before it that there had been no mass attacks against Shias in Lahore since 2010; that targeted attacked had only been against Shia political and religious leaders, doctors and lawyers; and, that there were no reported attacks targeting Hazaras. The Authority found that Sunnis and Shias are generally more integrated in Lahore and that no Shia deaths from sectarian violence were reported in Lahore in 2015. Further, based on country information before it, the Authority found that the Pakistani police do protect Hazaras and Shias.

4. The Authority referred specifically to the applicant’s claim that it was too dangerous for Shias to relocate to Lahore. However, based on country information before it, the Authority did not accept that assertion.

5. The Authority found that “the applicant could travel to and reside in Lahore.” Mr Tully submitted that that finding by the Authority had failed to consider whether the applicant could “safely and legally” reside in Lahore. Mr Tully posed the question whether “travel to” included “safely and legally”. The reference to “safely and legally” was a reference to the United Nation’s High Commissioners Report for Refugees Guidelines on International Protection No.4 from its “Eligibility Guidelines for Assessing the International Protection Needs of Religious Minorities from Pakistan” (1 May 2012).

1. I do not accept that the failure of the Authority to use the words “safely and legally” amounts to jurisdictional error. A fair reading of the Authority’s reason makes clear that it considered in some detail the risk to the applicant as a Shia Hazara in Lahore and concluded that the applicant could travel to and reside in Lahore. There is no reason to read that conclusion as excluding “safely and legally” and I do not do so. Again, to read those words otherwise involves approaching the Authority’s decision with an eye closely attuned to the detection of error (see Wu Shan Liang).

2. Accordingly, Ground 2 is not made out.

Ground 3

1. In support of Ground 3, Mr Tully submitted that the Authority had failed to consider a claim by the applicant to fear harm as a businessman and considered only the risk of harm to the applicant as a Hazara businessman.

2. In his statutory declaration the applicant made the following claims relevant to this complaint:

   “29. Hazara businesses and business men in Liaqat Bazaar Quetta have been a prime target for anti-Hazara, anti-Shia attacks. Businesses in Peshawar, Parachinar, Lahore & Karachi in Pakistan owned by Shia or Hazara people have been similarly targeted. I am one of many who have been displaced from working in Liaqat Bazaar.

   30. Since 2011 many Hazara's who had their businesses among Pashtun and Salach in the Quetta CBD have had to shut down their businesses or have been killed. Many successful Hazara businessmen have been killed. Numerous Hazara business men have fled Quetta and Pakistan generally.”

3. The Authority noted that the applicant consistently claimed to fear harm from LEJ and or Sunni militant groups because he is a Hazara Shia. The Authority also referred to the applicant’s claim to have received a threatening telephone call in 2009 prompting the applicant’s decision to work in Iran and to be involved in a shooting on a bus when travelling between Iran and Pakistan in 2011. The threatening phone call that the applicant received in 2009 was said by the applicant to contain the threat, “Why are you still living in Quetta? If you do not leave Quetta I will kill you.” The applicant stated that he was not the only businessman to have received such a threating call and that he knew of many other murders of Hazara businessmen.

4. The Authority accepted the applicant’s claims that he received a death threat in 2009 and was involved in a shooting in 2011, resulting in a genuine subjective fear by the applicant of a risk of harm in his hometown because he is a Hazara Shia. The Authority found the applicant’s claims to fear harm in Quetta and his hometown in Balochistan to be made out.

5. It was in the light of having accepted that the applicant was at risk of harm that the Authority considered whether the applicant could relocate to Lahore. I accept the first respondent’s submissions that the applicant feared harm by reason of being a Hazara, including as a Hazara businessman. The applicant did not make a distinct claim to fear harm only as a businessman. In the circumstances, the applicant’s claim to fear harm as a Hazara businessman was subsumed in the Authority’s general finding that the applicant could travel to and reside in Lahore as a Hazara Shia (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ).

6. Further, the Authority stated that it had regard to all of the evidence before it and had considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant. The Authority accepted that the applicant could be identified as a Hazara Shia because of his physical features and as someone from his hometown via his ID card.

7. However, a fair reading of the Authority’s decision record makes clear that in concluding that the applicant would not face a real chance of serious or significant harm if he relocated to Lahore, the Authority considered in detail whether it would be reasonable for the applicant to relocate to Lahore and had regard to his individual circumstances (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).

8. I accept the submissions of the first respondent that no claim squarely arose on the material before the Authority that the applicant claimed to fear harm in Pakistan only as a businessman (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

9. Otherwise, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. They were made after considering in detail the applicant’s claims and were not without an intelligible justification.

10. Accordingly Ground 3 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 11 April 2019