Emx18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 161
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EMX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 161
File number(s): MLG 2625 of 2018 Judgment of: JUDGE EGAN Date of judgment: 19 October 2021 Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – no error on the part of the Authority in its decision making pathway – no requirement for interview to be undertaken – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DC, 473DD Cases cited: Minister for Immigration and Border Protection v Pandey [2014] FCA 640
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
CED15 v Minister for Immigration and Border Protection [2018] FCA 451
ABT17 v Minister for Immigration and Border Protection & Anor (2020) 383 ALR 407
DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 551
DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 551
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 11 October 2021 Date of hearing: 11 October 2021 Applicant: The Applicant appearing in person on his own behalf Solicitor for the First Respondent: Australian Government Solicitors Counsel for the First Respondent: Mr V. Murano Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2625 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: EMX18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 OCTOBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Originating Application for Review filed on 31 August 2018 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Pakistan who arrived in Australia on 10 July 2013 as an unauthorised maritime arrival. The applicant is a Shia Muslim of Pashtun ethnicity.
On 22 August 2016, the applicant was invited to make an application for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise (Subclass 790) Visa (SHEV).
On 15 June 2017, the applicant lodged an application for a SHEV.
On 1 November 2017, a delegate of the Minister refused to grant the visa to the applicant. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.
On 30 November 2017, a representative of the applicant provided submissions to the Authority.
On 6 August 2018, the Authority affirmed the decision of the delegate.
On 31 August 2018, the applicant filed an Originating Application for Review of the decision of the Authority.
At the hearing before the Court, the applicant relied upon the following ground of review:
“Ground of application
1. The decision of the IAA is affected by legal unreasonableness, in that the IAA unreasonably failed to seek out, or to consider seeking out, new information from the applicant in relation to the applicant’s claims regarding his involvement with an NGO, in circumstances where the delegate accepted the truth of those claims after having exercised the discretion to interview the applicant in person”
Consideration of Claims by Authority
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [4] of its reasons, the Authority, when recording that there were exceptional circumstances justifying its consideration of new information, said as follows:
“[4]I have obtained recent information about deaths of Shia Muslims as a result of sectarian violence in Pakistan. This information is more recent than similar information about attacks on Shia Muslims in Pakistan that was before the delegate. In view of this and the evolving nature of the security situation in Pakistan, I am satisfied that there are exceptional circumstances to justify considering this new information.”
(footnotes omitted)
At [5] – [11] of its reasons, the Authority considered the applicant’s representative’s submissions provided to the Authority on 30 November 2017 as follows:
“[5]A submission from the applicant’s representative was received on 30 November 2017. A copy of a translation of a document purporting to be a threatening letter from the Taliban was also received. This document was previously provided to the delegate. The submission largely comprises argument, including legal argument, addressing the delegate’s decision. I have had regard to this aspect of the submission. The submission also includes or refers to new country information relating to attacks on NGO workers, attacks on Shia Muslims, attacks on Turi ShiaMuslims, attacks on other religious minorities and the process for renewing Pakistani computerised national identity cards (CNICs).
[6]The new information relating to attacks on NGO workers includes a 2014 Freedom House report ‘Freedom in the world 2014 – Pakistan’ and a hyperlink, apparently to an April 2016 United States Department of State ‘Pakistan Travel Warning’. The submission does not include any explanation as to why this information could not have been provided at an earlier point. The hyperlink is inactive and this information was not otherwise provided with the submission. It appears that it is no longer available on the United States Department of State website. However, I note that the information from this source cited in the submission, that is, that attacks on NGO employees are common, is not significantly different in nature to, or more recent than, other information about attacks on NGO workers that is before me, and it is very general in nature.
[7]The information in the 2014 Freedom House report indicates that NGOS working in violence prone areas such as the Federally Administered Tribal Areas (FATA) faced particular challenges. The examples of the issues faced by NGOs cited are reports of attacks by radical Islamist groups on NGOs devoted to female education and empowerment, and on polio vaccination workers. The applicant’s representative cites this information in support of the statement that ‘The Taliban and other militant groups are vehemently opposed to NGOs, publicly denouncing them as crypto-measures of spreading western democracy and other secret political and religious ambitions’. However, the Freedom House report indicates only that Sunni militant group the Tehreek-e-Taliban Pakistan (TTP) have denounced the drive for polio vaccination as a western plot, and provides quite limited support for the assertion that the Taliban and other groups are opposed to NGOs more generally. There is similar but more recent information before me, which is referred to by the applicant’s representative in the subsequent paragraphs of his submission. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering the new information regarding attacks on NGOs and their employees.
[8]The submission states that a report in a Pakistani newspaper4 describes how ‘sectarian elements are targeting Shia Turi from [town omitted] now in Islamabad and Rawalpindi, with numerous reports of threats, violent attacks, and attempted or actual kidnappings’. The article is dated 15 June 2015 and reports a Turi man’s claim that he was the victim of an attempted kidnap in Islamabad. The same man claimed that militants had also killed his cousin and tried to kidnap his son in 2011. The article states that dozens of people from Kurram Agency had been attacked after they moved to Islamabad. Another Turi man was reported to have said that he was attacked outside a mosque in Rawalpindi in 2014, while two other Turi men said they had received threatening letters from militants. The article does not describe any instance of the successful kidnap of a Turi Shia. The applicant’s representative states that the article indicates that some Shia Turis living in Islamabad hire security guards to ensure their safety, but this is not reflected in the text of the article. The submission does not indicate why this information could not have been provided at an earlier point.
[9]The article appears to be based on reports from members of the Turi community rather than on any more independent source such as police reports. It is dated in 2015 and therefore provides limited support for the applicant’s representative’s assertion that it shows that sectarian elements are currently targeting Shia Muslims in Islamabad and Rawalpindi. There is other, more recent, information before me indicating that some Turi migrants in Islamabad had reportedly received unspecified threats from sectarian elements.5 I note also that the article does not distinguish between the situation in Rawalpindi and Islamabad, although the country information before me suggests that the security situations in Islamabad and Rawalpindi are quite different.6 In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
[10]The submission also refers to information which is said to relate to the process for persons from FATA seeking to renew their CNIC. This information is said to show that people in this category are subject to more stringent requirements when renewing their CNICs. This information is sourced from a 2015 report published by an NGO. The applicant’s representative does not indicate why this information could not have been provided at an earlier point. The paragraph cited appears to relate to applications for a first CNIC rather than for the renewal of an existing CNIC. This information therefore appears to have little relevance to the applicant’s circumstances, as a person who currently holds a CNIC. I note also that there is other more recent and authoritative information before me specifically addressing the process applying to people from FATA who are seeking to renew their CNIC. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
[11]The submission includes a footnote that is a hyperlink to new, undated, information published on the website ‘revolvy.com’ that is general information about the Federally Administered Tribal Areas (FATA). This includes information about the history, geography, demography and administration of FATA, apparently sourced from Wikipedia. However, the text in the body of the submission to which the footnote is attached concerns the delegate’s consideration of the cost of living in Punjab Province, including her consideration of information previously relating to the affordability of housing. The submission does not indicate how the general information about FATA relates to the applicant’s particular claims for protection. There is other information before me about FATA generally. In these circumstances, I am not satisfied that there are exceptional circumstances to justify considering this information.”
(footnotes omitted)
At [16] of its reasons, the Authority summarised the applicant’s claims for protection as follows:
•“He is a Shia Pashtun from the Bangash tribe. He is from [town omitted] in Upper Kurram Agency, in the Federally Administered Tribal Areas (FATA) of Pakistan. His family still resides in [town omitted].
•In approximately 2009, after completing 12 years of school, he started work in his father’s butcher’s shop in a market in [town omitted].
•In 2009 or 2010 a bomb exploded near his father’s butcher’s shop. The shop was destroyed, but he and his father escaped harm.
•He stopped working with his father in early 2012. From this point until his departure from Pakistan in May 2013, he worked casually as a driver.
•For around a year and a half in 2012 to 2013, he worked as a surveyor and enumerator for a non-governmental organisation (NGO) called the ‘Community Rise’ program. He collected data about the local population for the purposes of community projects.
•In February 2013 he began to receive threatening phone calls from the Taliban, warning him to stop his work for the Community Rise program or be killed. They accused him of helping infidels and sharing the information he collected with the government.
•In March 2013, he received a threatening letter from the Taliban, again warning him to stop his work with the Community Rise program or be killed. The letter contained similar accusations to those made in the phone calls and also accused him of spying and taking photographs of women and children. The letter ordered him to convert to Sunni Islam or be killed. He was scared and decided to leave Pakistan.
•Since his departure, his maternal uncle and other relatives have been victims of sectarian attacks. His uncle was injured in a suicide attack in [town omitted] in July 2013.
•He fears that he will be seriously harmed or killed in a sectarian attack if he returns to Pakistan. There are many militant Sunni groups who target Shia Muslims in attacks throughout Pakistan. They have networks or sleeper cells in all major cities, so he would not be safe anywhere in Pakistan.
•He fears the Taliban will harm him because he worked for an NGO and because he is a Shia Muslim. As a Shia member of the Bangash tribe, he will be perceived to be opposed to the Taliban. His tribe have fought the Taliban in the past.
•He may also be harmed in another location by Sunni Muslims from his home area whose homes were destroyed and relatives killed in the sectarian conflict with Shia Muslims in Kurram Agency. These people may seek revenge on him, as a Shia from Kurram Agency, by harming him or sharing information about his location with the Taliban.
•He would not be safe anywhere in Pakistan as he will be readily identified as a Shia member of the Bangash tribe from [town omitted] wherever he goes.
•He may be harmed because of his Pashtun ethnicity, including as a result of discriminatory treatment. Pashtuns are perceived to be terrorists and are harassed by authorities and are discriminated against by people from other ethnic groups such as Punjabis. Pashtuns are required to register with police and this will expose him to further risk of harm as his registration information may be obtained by the Taliban.
•As a failed asylum seeker who will be returning from Australia, a western country, the Taliban will consider him a spy and an infidel.
•It would not be reasonable for him to relocate to another place in Pakistan. Due to his rural background, he will not be able to live in an urban centre like Islamabad. As a Pashtun he will be presumed to be a terrorist and people will not accept or help him. It will be difficult to find a job in a new city given his limited work skills, his limited Urdu skills, his inability to speak Punjabi, and his lack of connections. He will have no family network to provide support to him in another location and will be isolated. He will not be able to provide for his children and family.”
(names of towns omitted)
At [39] and [40] of its reasons, the Authority respectively recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
Consideration of Ground for Review
The one (1) ground of the Further Amended Application for Review relied upon by the applicant was a claim that the Authority failed to seek out new information from the applicant in relation to the applicant’s claims regarding his involvement with an NGO, and that that failure was legally unreasonable. In written submissions prepared by Counsel prior to the withdrawal of the applicant’s lawyers as lawyers on the record, it was submitted that the Authority ought to have considered whether it ought to have invited the applicant to an interview to itself assess the applicant’s claims in a similar way to which the claims were assessed by the delegate. It was further submitted that it was legally unreasonable for the Authority not to have invited the applicant for such an interview. [1]
[1] Paragraphs [6] – [8] inclusive of the applicant’s written submissions filed on 2 November 2020.
On behalf of the first respondent, it was first submitted that the applicant had not discharged the onus of proof of demonstrating that the Authority had not considered exercising power under s. 473DC(3) of the Act to invite the applicant to give new information at an interview. Counsel for the first respondent submitted that no good reason was demonstrated as to why the Authority ought to have invited the applicant for an interview. At [12] – [13] of its reasons, the Authority said as follows:
“[12]The applicant’s representative states that as the length of the submission was limited to five pages in accordance with the IAA Practice Direction for Applicants, Representatives and Authorised Recipients, he has not addressed all aspects of the delegate’s reasoning. He invites the IAA to put additional concerns to him. The applicant’s representative did not indicate what other matters he may wish to put to the IAA.
[13]As discussed, the applicant’s representative’s submission includes argument addressing various aspects of the delegate’s decision and includes some new information. The applicant provided a statutory declaration setting out his claims for protection with his SHEV application. He received assistance in preparing that application, and during the SHEV interview, from his representative. His claims for protection were explored during the SHEV interview. His representative provided a comprehensive submission to the delegate following the SHEV interview. I am satisfied that the applicant has had a proper opportunity to put forward his claims for protection, including in the submission to the IAA. I note that I am conducting a fast track review under the Act, and that the IAA is not obliged to invite an applicant to provide new information. In all of the circumstances, I am not satisfied the circumstances of this case require me to invite the applicant to provide new information.”
It was accepted that if an interview had been conducted, such interview would have constituted new information if the provisions of s. 473DD of the Act had been satisfied. Section 473DD of the Act relevantly provided as follows:
“473DD 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.”
The Court accepts the submissions of Counsel for the first respondent to the effect that the applicant had not clearly articulated what the nature of the new information he wished to provide was. That was so in circumstances where the applicant had been given ample opportunity to set out all of his claims, either in writing, or orally. The applicant had provided submissions to both the delegate and the Authority as well as a statutory declaration. The applicant was represented at the time of the preparation of his visa application as well as at the time of his interview with the delegate. The Authority well appreciated that the applicant had asserted that he had received threats from the Taliban because of his work for the NGO Community Rise Programme. It considered that the applicant had been given appropriate opportunity to put forward all of his claims for protection, and to clearly articulate his claims in that regard. The Authority adverted to that at [13] of its reasons when stating that it was not satisfied that the nature and content of the applicant’s claims warranted an invitation for an interview to be extended to him.
The approach adopted by the Authority when considering all of the evidence before it, and when handing down its decision, was not arbitrary, capricious, without common sense, or plainly unjust. The test for legal unreasonableness is a stringent one. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
The Authority was assessing the applicant’s claims in the context of the delegate having decided that though the applicant would not face a real chance of persecution by reason of his employment with the NGO, or because of his ethnicity, the applicant would face a real chance of persecution on account of his religion. [2] The Authority affirmed the decision of the delegate that there was a real chance of serious harm being suffered by the applicant in Upper Kurram Agency as a result of sectarian attacks. [3] The Authority considered country information relating to the prevalence of sectarian attacks throughout Pakistan, finding at [45] – [46] of its reasons as follows:
“[45]Pursuant to s.5J(1)(c), in order for the applicant to be found to have a well-founded fear of persecution, the real chance of harm must relate to all areas of Pakistan. As discussed, DFAT reported in September 2017 that there had been a substantial reduction in the level of violence throughout Pakistan since 2014. DFAT understands that serious crime across Pakistan has also reduced significantly since the commencement of Operation Zarb-e-Azb and the National Action Plan on terrorism in 2014. Military operations are said to have disrupted the activities of militant groups, and thousands of militants are reported to have been killed or convicted. Nevertheless, militant groups are said to remain active and are reported to continue to perpetrate attacks, particularly on government and sectarian targets. In February 2017, following a series of major terrorist attacks that took place from late 2016 across Pakistan, in particular in Lahore, Quetta, Peshawar, and Sehwan, the Pakistani Government launched Operation Radd-ul-Fasaad, the successor to Operation Zarb-e-Azb. Operation Radd-ul-Fasaad is said to be a nation-wide anti-terrorism operation aimed at eliminating the threat of terrorism and consolidating the gains of Operation Zarb-e-Azb across the whole of Pakistan. It is reported to have expanded the role of the army in counter-terrorism operations in Punjab Province.
[46]DFAT reports that Punjab Province tends to experience fewer militant attacks than other parts of Pakistan. The Islamabad Federal Capital Territory is located in Punjab Province. Its population is reported to be around two million people, including a large number of internal migrants from all parts of the country. The city of Islamabad has a population of around 1.36 million and is home to large Shia communities, including a Pashtun Turi Shia community, said to be up to 10,000 in number. According to DFAT, there is a strong security presence in Islamabad, including checkpoints throughout the city and at its entry points, and patrols by the paramilitary Rangers. These measures are said to provide a strong deterrent to militant groups planning attacks in the capital. Large-scale militant or sectarian attacks in Islamabad are reported to be rare, and any such violence tends takes the form of targeted killings, such as drive-by shootings of high-profile community leaders. SATP reported that a Shia cleric and leader of a Shia political part was killed in a drive-by shooting in 2014. I note that DFAT assesses that high-profile Shia Muslims face a moderate risk of violence. I note that I have not accepted that the applicant was of any adverse interest to the Taliban or any other Sunni militant group for any reason at the time he left Pakistan. There is nothing about his profile to suggest that he would be of any particular adverse interest to any Sunni militant group in Pakistan for any reason in the future, other than his identity as a Shia Muslim from [town omitted].”
(names of towns and footnoted omitted)
[2] Court Book (CB) p 175.
[3] [44] of the reasons of the Authority.
As to whether the applicant could safely relocate within Pakistan, so as to live in Islamabad, the Authority, at [56] – [61] of its reasons, said as follows:
“[56]While it is possible that the security situation in Islamabad will deteriorate and that sectarian attacks targeting Shia Muslims will occur in future, having regard to the country information discussed, including the apparent ongoing commitment on the part of the Pakistani Government to reducing violence across Pakistan, I am not satisfied that there is a real chance of harm to the applicant from the Taliban or other Sunni militant groups, or as a result of the security situation, in Islamabad, now or in the reasonably foreseeable future.
[57]The applicant claims that as a Pashtun, he will be regarded as a terrorist and may experience discriminatory treatment. He will be required to register wherever he lives in Pakistan. He suggested that as a result of this registration process his information may be shared with the Taliban, exposing him to risk of attack. He referred to the racial profiling of Pashtuns in Pakistan. There are said to be approximately 30 million Pashtuns in Pakistan. They are the second largest ethnic group in Pakistan after Punjabis, and are said to be represented at all levels of society. DFAT assesses that Pashtuns do not face a higher risk of violence than other groups based on their ethnicity.
[58]DFAT reported that some Pashtuns, particularly in Lahore, had claimed that they had been harassed by police and had difficulty obtaining identification. These issues are said to relate to the suspicion that Pashtuns may be associated with terrorism, in particular because the membership of Sunni militant group the Tehreek-e-Taliban (TTP, sometimes referred to as the Pakistani Taliban) is primarily Pashtun. There are media reports before me indicating that police in Punjab have harassed Pashtuns for similar reasons, including asking residents to report or check on individuals of Pashtun or Afghan appearance. One such report suggests that Pashtun traders in Punjab had been asked to present their papers to police. However, there are no reports of similar harassment of Pashtuns occurring in Islamabad. Further, I consider it highly unlikely that as a Shia Bangash Pashtun, the applicant would experience any mistreatment in Islamabad, including any discriminatory treatment, on the basis that he would be perceived to be associated with the terrorist activities of Sunni militants. I note that I have accepted that the applicant will be readily recognised as a Bangash Shia Muslim. On the evidence before me, I am not satisfied that that there is a real chance of any harm to the applicant in Islamabad, now or in the foreseeable future, on the basis of his Pashtun ethnicity, including as a result of any discriminatory treatment.
[59]The applicant claims that the Taliban may harm him on his return to Pakistan because he will be returning to Pakistan having sought protection and lived in Australia. He claims that the Taliban will consider him a spy or an infidel for seeking refuge in Australia, which they regard as an enemy state. The applicant did not advance any independent evidence of attacks by the Taliban or other Sunni militant groups that have targeted Pakistani citizens returning to Pakistan after living in western countries, including any attacks on returning unsuccessful asylum seekers. There are no reports of such attacks in the other information before me. According to DFAT, western influences are pervasive in Pakistan and many Pakistanis have relatives in western countries and aspire to migrate abroad. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country. DFAT further assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. On the evidence before me, I am not satisfied that there is a real chance of any harm to the applicant on his return to Pakistan on this basis from the Taliban, any other Sunni militant group, or any other group or person, now or in the foreseeable future.
[60]The applicant claims he may be harmed if he returns to Pakistan because of his imputed political opposition to the Taliban. He claims that he will be imputed with this political opinion because of his work for the ‘Community Rise’ program, his Shia religion, and his status as a returnee from a western country. I note that I have not accepted that the applicant worked for, or was perceived to work for the ‘Community Rise’ program. I have concluded that there is not a real chance of any harm to him as a returnee from a western country. I have accepted that as a Shia Muslim from [town omitted], he would be perceived to be opposed to the Taliban and other Sunni militant groups. I accept also that as a Shia Muslim, the applicant is opposed to the Taliban and other Sunni militant groups that attack Shia Muslims.
[61]I have not accepted that the applicant was of any particular adverse interest to the Taliban or any other Sunni militant group in Pakistan for any reason, other than as a Shia Muslim from [town omitted], at the time that he left Pakistan. The applicant does not claim to have publically expressed any opposition to the Taliban or any other Sunni militant group, or to have engaged in any activity that may be perceived to be opposed to the Taliban or other Sunni militant groups in the past, other than his claims relating to his work for the Community Rise program, which I have not accepted. He has not expressed any desire to publically express his opposition to the Taliban and other Sunni militant groups in future, and I am satisfied that he would not do so, having regard to his past behaviour. I consider the chance of harm to the applicant on the basis of his opposition to the Taliban and other militant Sunni groups to be indistinguishable from the chance of harm to him as a Shia Muslim member of the Bangash tribe from [town omitted].”
(names of towns omitted)
At [62] – [68] inclusive of its reasons, the Authority considered whether it would be reasonable for the applicant to relocate to Islamabad. At [68], the Authority said as follows:
“[68]I accept that the applicant’s employment-related skills are such that he is unlikely to secure highly paid employment in Islamabad. Nevertheless, as discussed, he has experience working as a butcher and has also worked as a driver. He has also found some form of employment in Australia. I accept that it is very likely that the applicant will not be able to secure the same standard of living in Islamabad that he has in Australia. However, I am satisfied that he will be able to find employment and accommodation in Islamabad such that his ability to subsist there will not be threatened, notwithstanding his lack of any connections in the city, and his inability to speak Urdu.”
Having considered all of the evidence before it, the Authority found that there was not a real chance of the applicant suffering harm in Islamabad. At [69] of its reasons, the Authority said as follows:
“[69]Having considered the range of evidence before me, I am not satisfied that there is a real chance of harm to the applicant in Islamabad, now or in the foreseeable future, on the basis of his profile as a Pashtun Shia Muslim from the Bangash tribe from [town omitted], his private opposition to Sunni militant groups, for any reason related to his ability to secure employment and accommodation in Islamabad, on the basis that he will be returning to Pakistan having sought protection and lived in Australia, a western country, or as a result of the security situation in Islamabad. I am not satisfied that any of the applicant’s circumstances would combine to expose him to a real chance of harm in Islamabad, now or in the foreseeable future. I am satisfied that the applicant could safely return to Islamabad by travelling to Benazir Bhutto international airport.”
(names of towns omitted)
Having found that the applicant did not satisfy the s. 36(2)(a) criteria, the Authority at [71] – [85] of its reasons considered whether the applicant fell within the s. 36(2)(aa) complimentary protection criteria. At [85] of its reasons, the Authority found that having considered all of the applicant’s individual circumstances and all of the evidence before it, including the security situation in Islamabad, it was reasonable for the applicant to relocate to Islamabad where he would face no real risk of suffering significant harm. The Authority concluded that the applicant did not satisfy the criteria under s. 36(2)(aa) of the Act.
On the question as to whether the Authority considered whether to interview the applicant or not, the Court finds that the applicant failed to discharge his onus of establishing that the Authority failed to do so.
On the question as to whether the Authority ought to have exercised its power under s. 473DC of the Act to interview the applicant, the Court finds that it was not legally unreasonable for it not to have so invited the applicant for an interview. It could not be said that had the Authority invited the applicant for an interview it would have been likely that the applicant would have said anything that could realistically have resulted in the Authority arriving at a different decision. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Authority was unprepared to accept the applicant’s claims that he had been employed by the NGO, and that the Taliban had made threats against him because of such employment. The Authority made such finding, in part, based upon the lateness of the making of such claims, in circumstances where it held that there was no reasonable basis for the applicant not claiming, at the time of his entry interview, that the threats from the Taliban by reason of his employment with the NGO was the reason for his having left Pakistan. [4] Having reviewed the recording of the entry interview, the conclusions reached by the Authority were open on the evidence before it. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
[4] [30] – [37] inclusive of the reasons of the Authority.
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The Authority also found that the applicant’s evidence about the NGO was vague. It pointed to a discrepancy between the name of the NGO given by the applicant in the SHEV application, as opposed to the name of the NGO given by him at the time of the SHEV interview. The applicant did not describe the activities of the NGO with specificity, nor did he identify any project undertaken by the NGO. The applicant failed to identify whether the NGO was an international organisation or a Pakistani organisation. The applicant also failed to identify where the NGO was allegedly based. [5] In such circumstances, the Authority was entitled to proceed to consider the important question of the reasonableness of the applicant relocating to Islamabad without conducting an interview. The Authority was already satisfied that there was a real chance that the applicant would suffer serious harm in Upper Karrum Agency by reason of his religion. The question as to whether or not the applicant did or did not receive threats from the Taliban by reason of his alleged employment with the NGO was, in such circumstances, subsumed within the wider question as to whether or not the applicant met the complimentary protection criteria or not.
[5] [22] of the reasons of the Authority.
Relevantly, there was no informational gap which was required to have been cured by the holding of an interview. The Authority had accepted country information to the effect that the applicant had met the relevant s. 36(2)(a) criteria based upon his religion. In circumstances where the Authority was required to undertake its statutory duty in a fast track assessment regime, it was unnecessary for the Authority to pursue what was asserted to be another basis for satisfaction by the applicant of the criteria under s. 36(2)(a) of the Act. Having found that the applicant had met the s. 36(2)(a) criteria, the Authority was, clearly, primarily concerned with the question as to whether or not the applicant would then satisfy the complimentary protection criteria if he was to relocate to Islamabad. It found that he wouldn’t.
No question of the assessment by the Authority of the demeanour of the applicant (if called upon to answer questions about alleged Taliban threats being made to him because of his NGO employment) was required to be considered by the Authority, because it was irrelevant to the Authority’s decision making process. The Authority’s adopted decision making pathway did not constitute a breach of its implied duty to act reasonably. Further, the fact that the applicant’s credibility was questioned by the Authority did not necessarily mean that it was required to interview the applicant. [6] The Court respectfully relies upon the judgment of the Full Court in DGZ16 v Minister for Immigration and Border Protection & Anor (2018) 258 FCR 551 per Reeves, Robertson and Rangiah JJ at [72] – [76] where it was said as follows:
“[72]In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[73]We would not however approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review. That is to view the procedure through a natural justice lens.
[74]We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
[75]There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.”
[6] ABT17 v Minister for Immigration and Border Protection & Anor (2020) 383 ALR 407 at [24] per Kiefel
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The one (1) Ground of review has not been made out. The Authority did not err. The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 19 October 2021
CJ, Bell, Gageler and Keane JJ.
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