Enm18 v Minister for Home Affairs

[2019] FCCA 926

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENM18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 926

Catchwords:
MIGRATION – Application for safe haven enterprise visa (SHEV) – inconsistencies in applicant’s claims – country information contrary to applicant’s claims that he feared harm – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36(2), 46A, 473CB

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: ENM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 908 of 2018

Judgment of: Judge Egan

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Brisbane

Delivered on: 3 April 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Mr. Kyranis of Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 31 August 2018 be dismissed. 

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 908 of 2018

ENM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan. On 3 May 2013, he arrived at Christmas Island as an unlawful maritime arrival. On 30 June 2016, the Department notified the applicant that the Minister had lifted the section 46A bar and the applicant was invited to apply for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise Visa (SHEV). On 26 September 2016, the applicant applied for a SHEV.

2. At [5] of the reasons of the Immigration Assessment Authority (‘the Authority’), the Authority set out the applicant’s claims for the visa as follows:

   ·“He is a Pashtun Muslim from a village near the town of Hazro in Attock District, in Punjab Province.

   ·He owned and operated a small business in Hazro selling DVD and CD players CDs, DVDs, and other electrical goods. His stock included Hollywood and Bollywood films.

   ·In 2008, some men came to his store and announced they were from the Taliban. They told him that operating a DVD shop was against Islam and said he should close the shop. After this, groups of two to five armed men visited his business, delivering the same message, every month, two months, or three months until around 2011. The men had Afghan accents. He wasn’t sure whether they were from the Afghan Taliban or the Tehreek-e-Taliban Pakistan (TTP). They continued to say that his business was against Islam and to pressure him to close it.

   ·In 2011, the tone of the visits became more threatening and aggressive. The men warned that if he did not close the shop, they would destroy it.

   ·In around February or March 2012, a group of three armed members of the Taliban visited his shop. They were angry and yelled at him, warning him that if he did not close the shop within two weeks they would destroy the business and kill him. After this, he noticed he was being watched and followed.

   ·One or two weeks after the February or March 2012 visit, five armed men came to the shop. He recognised two of them from a previous visit. They yelled that they were going to burn and destroy his shop and make an example of him. He understood this mean that they would kill, kidnap or otherwise seriously harm him. He was worried and started to open the shop less often.

   ·On 20 December 2012 his shop burned down. A day or so later, he received a telephone call. The caller said that he had not listened to them and this was the result. The caller warned him that they would shoot him if he went against them.

   ·He suffered severe psychological harm as a result of the destruction of his shop and the threats he received.

   ·He feared for his life and decided to leave Pakistan. He departed Pakistan to travel to Australia in March 2013.

   ·He was known for his modern and progressive views in Pakistan and was viewed as moderate, liberal, and leftist.

   ·Since his departure from Pakistan the Taliban have regularly asked his brother-in-law where he is.

   ·He is on the Taliban’s watch list and they will find him wherever he is if he returns to Pakistan. The Taliban threaten and kill people in many parts of Pakistan. They will torture and / or kill him as an example to show others what they do to people who do not listen to them and who engage in activities they consider to be un-Islamic.

   ·If the Taliban come to know that he sought protection in Australia, a western country they consider to be their enemy, they will kill him. They will perceive him to be opposed to them and consider him a spy and a traitor who wanted to assimilate in a western country. They may torture him to discover whether he has given the Australian government information about them. They will disseminate his photograph and information within the community and claim that he is a spy and traitor. This will prevent him from finding employment as employers will be afraid that they or their businesses might be harmed if they employ him.

   ·He could not relocate to another place in Pakistan. The Pakistani authorities are not willing or able to assist him.”

3. On 5 July 2017, the applicant attended an interview with the delegate. On 21 November 2017, the delegate refused to grant the SHEV.  On 28 November 2017, the matter was referred to the Authority.  On 19 December 2017, the applicant’s representative provided written submissions to the Authority.  On 10 August 2018, the Authority affirmed the delegate’s decision to refuse to grant the applicant the SHEV.  On 31 August 2018, the applicant filed an application for judicial review of the Authority’s decision.

4. The one ground of the application for review was as follows:

   “(1)  The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.”

5. At [3] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the Secretary, pursuant to the provisions of section 473CB of the Migration Act 1958 (Cth) (‘the Act’).

6. At [4] of the reasons of the Authority, the Authority recorded that on 19 December 2017, the applicant’s migration agent provided a submission from counsel for the applicant to which the Authority had had regard in relation to arguments addressing the delegate’s decision, as well as information that was before the delegate.

7. At [6] - [7] of the reasons of the Authority, the Authority set out the refugee criteria as provided for in section 5H(1) of the Act, as well as setting out what constituted a well founded fear of persecution under section 5J of the Act.

8. As to the applicant’s claims that he would be killed as set out in [8] – [11] of the reasons of the Authority, reference was made by the Authority to DFAT country information reports which suggested that the TTP – referred to as the Pakistani Taliban – maintained a separate identity from the Afghan Taliban, albeit that they were ideologically aligned.

9. Country information was referred to at [12] - [15] of the Authority’s reasons. The Authority referred to the threats posed by the TTP.  At [16] of the Authority reasons, it was recorded that there was little evidence before the tribunal to suggest that the Afghan Taliban were active in the applicant’s home district of Attock in Punjab Province in the period during which the applicant claimed he was visited by members of the Taliban or other militants.

10. It was noted that the applicant’s home district of Attock was in north-west Punjab Province and bordered KP province.  It was also noted that whilst not very distant from the border with Afghanistan, it did not border Afghanistan or the FATA, and that both KP Province and the FATA lie between Attock district and Afghanistan. 

11. At [18] of its reasons, the Authority found that the country information, when considered as a whole, suggested that in areas in which the Pakistani Taliban or other militant groups exercised some degree of control, they attempted to impose their standards and beliefs on the communities under their control.  It was also found that in areas which they did not control, they attacked targets associated with the government and members of religious minorities whilst also attacking members of some other groups such as polio workers and journalists. 

12. The country information before the Authority did not indicate that the Attock District was under Taliban control in the relevant period, or at any other point in time. It was also found by the Authority that the information discussed suggested that it was unlikely that the Afghan Taliban, the TTP, or any other militant group or groups would have sought to persuade the applicant to close his shop in Hazro, on the basis that it was un-Islamic over the period of four years, as claimed, or at any point.

13. The Authority also found at [18] of its reasons that the applicant’s evidence was inconsistent concerning the alleged visits and alleged threats made by the Taliban in relation to the operation of the applicant’s shop.  At [19] of the Authority reasons, it was recorded that the applicant’s evidence appeared to change during the SHEV interview.  In some instances there was an inconsistency concerning identification of alleged members of the Taliban who had visited him. 

14. At [20] of its reasons, the Authority noted that there was an inconsistency between the applicant’s evidence as to the number of visits he received from the Taliban and the timing of such visits.  In his SHEV application, the applicant said that from 2008, he started to receive “random visits” from groups of up to two to five armed men at least once a month for up to four or six months.  He then said that in 2011, the visits started to get more frequent and turned into warnings and threats to the effect that his shop would be destroyed if the applicant did not close it. 

15. At [21] of its reasons, the Authority found that during the SHEV interview the applicant said that after the first visit from a few members of the Taliban in February 2008, a second visit from another group of men followed a few months later.  The Authority pointed to inconsistent versions of the nature and extent of alleged visits from the Taliban thereafter.  The Authority was also concerned about the applicant’s evidence regarding the Taliban’s motivations for visiting him, such evidence varying in nature. 

16. The Authority could not understand why the Taliban would seek the closure of the applicant’s business by visiting the applicant many times over an extended period, rather than resorting to more direct actions such as the destruction of the business at an early time.  The Authority in [28] of its reasons also noted the vague evidence of the applicant concerning his alleged interactions with police concerning the Taliban’s alleged actions against him. 

17. At [31] of its reasons, the Authority found that considering the evidence as a whole, it was not satisfied that the applicant was ever visited in his shop or asked to close his shop by members of the Taliban or any other militant group.  It did not accept that the applicant had ever been threatened by members of the Taliban or any other militant group or that the Taliban or any other group had burnt his shop down. 

18. It followed that the Authority did not accept the applicant’s assertion that he had experienced any psychological harm as a result of any threats from the Taliban, or as a result of the alleged destruction of his shop.  Neither did the Authority accept that the applicant’s departure from Pakistan was prompted by any threat received from the Taliban or any other militant group.  The applicant was noted as not having produced any evidence to support his claims that his shop had been burnt down, including any police report or photograph of his former business.  The applicant was not able to satisfy the Authority that the applicant’s shop had been destroyed by arson. 

19. At [32] of its reasons, the Authority recorded that it was not satisfied that the applicant was of any adverse interest to the Taliban, or to any other militant group for any reason, including his operation of a DVD, CD, or electronic shop at the time that he left Pakistan. 

20. The Authority did not accept that members of the Taliban or any other militant group had visited any member of the applicant’s family looking for the applicant since his departure from Pakistan.  The Authority was therefore not satisfied that there was a real chance of any harm to the applicant in the Attock District at the time of the making of the decision or in the foreseeable future. 

21. Though the applicant claimed that he experienced depression and anxiety at the thought of having to return to Pakistan, the Authority found at [34] of its reasons that there was no independent evidence, medical or otherwise, relating to the applicant’s claimed ill health.  The Authority was not satisfied on the evidence before it that there was a real chance of any harm to the applicant in Pakistan on that basis. 

22. At [38] of its reasons, the Authority recorded that based on country information, there had been a significant reduction in violence across Pakistan since 2014 as a result of major government initiatives aimed at reducing violence, particularly by targeting the activities of militant groups.

23. At [39] of its reasons, it was recorded that DFAT reported in 2016 that militant groups, particularly the TTP, were divided and disrupted.  At [46] of its reasons, the Authority found that based on country information, violent incidents in Attock District were rare, and that when terrorist attacks had occurred, they had targeted politicians, military targets or members of religious minorities.  The Authority found that the applicant was not among those groups regularly targeted in attacks by militant groups. 

24. The Tribunal was not satisfied that there was a real change of harm to the applicant as a result of attacks by the Taliban, or any other Sunni militant groups, or as a result of the security situation in Attock District at the time of the making of the decision, or into the foreseeable future. 

25. As to the applicant’s claims that he would suffer harm if returned to Pakistan because he had sought asylum in Australia, namely, a western country, the Authority noted at [44] of its reasons that according to DFAT, western influences were pervasive in Pakistan and many Pakistanis had relatives in western countries who aspired to migrate abroad.  It noted that DFAT assessed that individuals were not subject to discrimination or violence on the basis of having spent time in western countries.  The Authority found that it was not satisfied, that the applicant would be of any future adverse interest to the Taliban or any other Sunni militant group on that basis.

26. At [46] of its reasons, the Authority recorded that, whilst the applicant might be questioned upon his return to Pakistan, it was not satisfied that any brief period of detention for questioning of that type would amount to serious harm. It was further not satisfied that there was a real chance of any other harm to the applicant in Attock District at the time of the decision, or into the foreseeable future, having regard to the applicant’s individual circumstances and claims, either considered separately or cumulatively, based on the information before the Authority. The Authority therefore concluded at [47] of its reasons that the applicant did not meet the definition of refugee in section 5H(1) of the Act. Nor did it consider that the applicant met the criteria as set out in section 36(2)(a) of the Act.

27. The Authority went on to hold that the applicant did not meet the complementary-protection criteria as set out in section 36(2)(aa) of the Act, finding that the applicant did not face a real chance of harm in Attock District for any reason related to his past operation of a CD, DVD and electronics shop. Neither did it consider that the applicant’s health, his private progressive views, his profile within his village as a moderately progressive man, or on the basis that he would be returning to Pakistan as a failed foreign-asylum-seeker, would give rise to such risk of harm. It found at [52] of its reasons that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Pakistan that there was a real risk that the applicant would suffer significant harm, and it found that the applicant did not meet the section 36(2)(aa) criteria thereby.

28. It has not been demonstrated by the applicant that the Authority failed to make an obvious inquiry about any critical fact. [1] 

    [1]     SeeMinister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25] -[27].

29. Further 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]:

    “[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.”

30. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification as such concepts were respectively considered 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.”

1. No jurisdictional error has been established on the part of the Authority by the applicant. 

2. The application for review is without merit and is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  24 April 2019