EHL17 v Minister for Immigration

[2019] FCCA 260

FEDERAL CIRCUIT COURT OF AUSTRALIA

EHL17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 260

Catchwords:
MIGRATION – Judicial review – fast track review – protection visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.7AA, 473DC(1)

Applicant: EHL17

First Respondent:  MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:  IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 394 of 2017

Judgment of: Judge Young

Hearing date: 22 January 2019

Date of Last Submission: 22 January 2019

Delivered at: Darwin

Delivered on: 22 January 2019

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Milutinovic

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed 26 September 2017 is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 394 of 2017

EHL17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision made by the Immigration Assessment Authority under the fast track review process in Part 7AA of the Migration Act.  The applicant is a Pakistani citizen of Hazara ethnicity and Shia religion.  He lived in Quetta in Balochistan province before coming to Australia.  His claims – and I summarise them – are that he is an Hazara Shia who was at risk of serious harm in Pakistan because of the behaviour generally of Sunni extremists and terrorist groups who have targeted Hazaras and Shias in Pakistan;  he referred to the risk of kidnapping of social activists; the terrorist attacks by extremist Sunnis; the government’s inability to stop those attacks; the claim that some elements of the government have colluded with or tolerated extremist and terrorist activities in Pakistan  and he pointed to the number of sectarian attacks taking place in Pakistan, or having taken place in Pakistan, including sectarian attacks on Shia people.

3. The Authority refused to accept some new information from the applicant on the basis that it was not new information according to the definition in section 473DC(1), that is information that was not before the Minister when the delegate’s decision was made or the Minister’s decision was made under section 65 and that the Authority considers relevant.

4. The new information that was sought to be relied on by the applicant concerned, essentially, information about the matters that I have just mentioned, that is, kidnapping of social activists in Pakistan, the lack of response from the government to extremist activity and terrorist activity and so on, including the risk of so-called “blocking” of national identity cards held by Hazara people.

5. In relation to the information that predated the delegate’s decision the Authority refused to consider that.  The Authority did consider some information, country information, post-dating the delegate’s decision.  It concluded that information about the kidnapping of social activists in the Punjab, for example, in 2017 and so on was not applicable to the circumstances of the applicant who was a motorcycle mechanic with no history of activism.  In other words, the Authority considered that the new information did not relate to the applicant’s circumstances.

6. The Authority, nevertheless, accepted that there was a real chance that the applicant would suffer serious harm in Quetta in Balochistan, essentially, because of targeted sectarian attacks against Hazara Shia in Quetta and/or Balochistan.  The Authority accepted those claims by the applicant.  The Authority concluded that it was reasonable for the applicant to relocate to Islamabad which is a major city, according to the Authority, of about 2 million people.

7. The Authority considered the situation for Hazaras and Shias in Islamabad and, in particular, referred to country information about Islamabad in the years 2014, 2015 and 2016.  The Authority, relying on that country information, noted that in 2014 there had been 14 terrorist incidents in Islamabad and, in 2015, there had been three terrorist “incidents”, which I take to be terrorist attacks, which included both a sectarian attack on a Shia group and also on a Sunni group.  The Authority noted that in 2016 there was no evidence of any sectarian attacks. 

8. On the basis of that material the Authority considered that it was reasonable for the applicant to relocate to Islamabad and, if he did so, there was no real chance that he would suffer significant harm on the refugee grounds that he had identified in his application.  The Authority, accordingly, dismissed his protection claims.

9. In the applicant’s challenge to that decision to this court he identified in his grounds of review three claims (they were not drafted by a lawyer):

   (1) The assessment was unfair and facts have been ignored; 

   (2) The reviewer has only used one or two sources of information;

   (3) The delegate took decisions on the basis of personal belief. 

10. I asked the applicant whether he was able to identify with any greater particularity the errors that he said the Authority made.  He was not able in any real sense to identify a legally recognisable jurisdictional error.

11. He also filed an affidavit at the time he filed his application.  That affidavit annexed the Authority’s decision and also annexed a document titled “Statement of Reasons”.  That is a more detailed criticism of the Authority’s decision.  Essentially, it takes issue with the Authority’s assessment of country information. I have read that document. I will return to an aspect of that in a moment.

12. The other documents attached to the affidavit were newspaper reports, essentially, post-dating the Authority’s decision.  The applicant said that he ought to be permitted to rely on that.  The Minister objected to that material being received in evidence on the basis that in an application for judicial review that material would ordinarily be irrelevant. I accept that submission.  I have not considered that material.

13. Returning to the material that I have considered, that is, the detailed criticisms of the Authority’s approach to country information, one matter that I did raise with the applicant, and there was some discussion of this issue, was this: the Authority’s decision that relocation to Islamabad by the applicant was reasonable hinged on the Authority’s conclusion that there was an Hazara community in Islamabad which the applicant could join. The Authority concluded that the applicant was a young man, even though he was without formal education, he was qualified as a motorcycle mechanic and he appeared to be, on the basis of his life in Australia, adaptable and competent. It concluded on the basis of those factors, that is, an existing Hazara community in Islamabad, the applicant’s youth, his qualification as a motorcycle mechanic and the likelihood, in the Authority’s view, that he would be able to obtain employment, that relocation was reasonable. 

14. In discussion with me this morning, the applicant took issue with the Authority’s conclusion that there was an existing Hazara community in Islamabad.  He said that the only Hazaras living in Islamabad were, essentially, rich people who could afford individualised protection or members of the Pakistani army, who would also be protected.  In substance, he denied that there was such a community and, impliedly at least, he said there was no evidence for one of the key conclusions of the Authority.  So I have taken the point raised by the applicant to be, in substance, an assertion that one of the Authority’s key conclusions underpinning its conclusion that relocation was reasonable was a conclusion that was not open to it on the materials.

15. I was not able to identify in the materials the precise country information that the Authority relied on in concluding that there was an existing Hazara community in Islamabad.  However, the following points are relevant.  The delegate concluded that relocation to Islamabad was reasonable for the applicant, essentially, on the ground that Islamabad was relatively safe for migrant Shia communities and it footnoted a DFAT thematic report “Shias in Pakistan”, a thematic DFAT report also referred to and footnoted by the Authority.

16. In the applicant’s submissions following the delegate’s decision on 9 January 2017 the applicant made further submissions to the Authority. In those submissions, which begin at court book page 233, the applicant, who was represented by a migration agent, made the following submission at [15]. It is referring, essentially, to the delegate’s conclusion that Islamabad was relatively safe for Shia people. The paragraph read:

    Not insignificantly, this information also goes to the presence of anti-Shia sectarian elements in Islamabad in at least February 2016, contrary to the findings of the Delegate.  The information speaks specifically to the fear of harm in the reasonably foreseeable future, given the fate of other Shia tribal area communities who have sought refuge in Islamabad. 

    I interpolate. I take that to be a reference to another tribe, the Turi Shia, who have apparently relocated to Islamabad en masse, and it is not suggested that the applicant is a Turi.  On the contrary, he is an Hazara.  To resume, the submission says:

    Ironically, the larger the numbers of Hazara Shias who move to Islamabad (the flight from Balochistan is documented in our previous submissions) and therefore the more likely to be able to sustain a community, able to provide the applicant with material support, the greater the risk of both target (sic) killing and a mass casualty attack targeting the Applicant.

17. The paragraph goes on but that is the part I wish to refer to.  I have attempted to identify what was said in the submission by the applicant about the flight from Balochistan being documented in earlier submissions. There are apparent references in the migration agent’s submissions, apparently to the delegate, commencing on page 113 of the court book. 

18. The most direct reference I can find in the earlier submissions is in a submission to the delegate at court book 179 where the applicant has made a submission about Hazaras moving en masse out of Quetta to other parts of Pakistan to seek safety.  I have not noticed any particular submission about Hazaras moving to Islamabad but I am simply illustrating that the context of the reference in paragraph 15 to the Hazara Shias moving to Islamabad is in the context of a flight of Hazaras from Balochistan. 

19. So that submission made by the applicant himself and the gravamen of the submission is that there is a flight of Hazaras from Balochistan and that some at least have sought refuge in Islamabad.  The submission made was that the more Hazaras there were in Islamabad the more likely that there would be a sectarian attack against them.  I have not identified anywhere in the material where the applicant or his migration agent have raised a claim that there was no real community of Hazaras in Islamabad. 

20. On the contrary, the submission appears to be that there is a flight of Hazaras from Balochistan to other cities in Pakistan, which would include Islamabad and that fact is likely to increase the risk of harm. I cannot accept that there was no evidence for the Authority to conclude that there was an existing Hazara community in Islamabad. 

21. I should deal briefly with some of the other matters that were raised in submissions by the Minister.  There are no, as I have already observed, legally recognisable claims of jurisdictional error but the Minister submitted that in relation to the first alleged ground of error that there is no evidence that the assessment was unfair or that facts have been ignored.  I have read the material and I see nothing to support that allegation.  The second ground, that the reviewer has only used one or two sources of information, is objectively incorrect. 

22. The footnotes to the Authority’s decision show that it relied on at least the following sources of country information:  a report from the Pakistan Institute for Peace Studies, material from the South Asia Terrorism Portal and two DFAT reports: a DFAT thematic report “Shias in Pakistan 2016” and a DFAT country report dated 2016.  There are also references to news reports from the Dawn newspaper, which I understand is a Pakistani newspaper.  Some of that material at least was material submitted by the applicant, the newspaper articles in particular.

23. The Authority has apparently relied on appropriate credible and reliable country information, not from one or two sources, including not only from the Department of Foreign Affairs and Trade but other credible sources of country information.  I see no basis for allegation of error there.  The third point was that the delegate took the decision on the basis of personal belief.  That was not really addressed in any sense by the applicant and I am not satisfied that that is the case, even if it were a meaningful claim. 

24. In summary, I am satisfied that the Authority correctly identified the applicant’s claims and correctly applied the legal test, including the legal test for relocation or the legal test of whether the applicant was a refugee given that it was reasonable for him to relocate.  I am satisfied that there was a basis in the material for the Authority to conclude that relocation was practicable given that there was an existing Hazara community in Islamabad and that those findings were open to the Authority on the materials. 

25. That being the case, I am not satisfied that there is any substance to any of the grounds raised by the applicant or that there has been any error demonstrated on the part of the Authority and I dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 6 February 2019