ETO18 v Minister for Home Affairs

[2019] FCCA 2431

FEDERAL CIRCUIT COURT OF AUSTRALIA

ETO18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2431

Catchwords:
MIGRATION – Application for safe haven enterprise visa – whether new information was credible personal information – construction of s. 473DD(b)(ii) – relocation reasonable in the light of country information – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 473CB, 473DD.

Cases cited:

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176.

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

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

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.

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

Applicant: ETO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 957 of 2018

Judgment of: Judge Egan

Hearing date: 13 August 2019

Date of Last Submission: 13 August 2019

Delivered at: Brisbane

Delivered on: 30 August 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Aleksov

Solicitors for the Applicant: Landmark Law Group

Counsel for the Respondents: Mr A. Psaltis

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The amended application for review filed on 26 April 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 957 of 2018

ETO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Pakistan born on 1 January 1982. He arrived in Australia as an unauthorised maritime arrival in 2013.

2. On 26 October 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).

3. The applicant’s SHEV application was refused by a delegate of the Minister on 19 April 2018. After refusal, the delegate’s decision was referred to the Immigration Assessment Authority (IAA) for review.

4. On 10 September 2018, the IAA affirmed the delegate’s decision.

5. On 14 September 2018, the applicant filed an originating application seeking a review of the IAA’s decision.

6. On 26 April 2019, the applicant filed an amended application for review.

7. At [3] of its reasons, the Authority noted 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).

8. The applicant’s claims for protection were recorded by the IAA as follows:

   7. The applicant’s claims can be summarised as follows:

   ·He was born on 1 January 1982 in Torwarsak, Buner District, Khyber Pakhtunkhwa Province, Pakistan.

   ·He is married and has a wife and two sons. He also had two daughters, one who was killed in a household accident and another who was killed in 2010 in cross fire between the Pakistan Army and Taliban.

   ·From 2004-2008 he worked in Shalmi Market in Lahore selling baby clothes but this was not profitable.

   ·From 2008-2012 he worked at Saddar Bazaar in Peshawar, initially selling fruit and vegetables, but moving to selling DVDs and CDs in 2012 as it was more profitable.

   ·After approximately four weeks of selling CDs and DVDs he received a letter on Taliban letterhead, demanding he stop. The applicant did not take the letter seriously and continued his business.

   ·Approximately one month later he received a second, more threatening letter regarding ceasing the sale of CDs and DVDs.

   ·A few days later, in the early hours of the morning a bomb exploded outside his shop, destroying it. He was informed by other shopkeepers that the bomb was planted by the Taliban and that two other CD shops in the area had also been destroyed by bombs.

   ·He found a new CD/DVD supplier and started a new business as a direct supplier to various shops around Swat.

   ·One evening whilst selling CDs and DVDs he was captured by the Taliban on the street and driven to a Taliban base in the mountains.

   ·At the Taliban base there were many other people who had been captured including children who were being trained as suicide bombers. He was beaten, shown videos of beheadings and warned that he would be killed if he did not help the Taliban.

   ·After several weeks he managed to escape the camp and flee on foot, eventually finding a road where a passer-by picked him up and assisted him to get to a friend's house in Swat.

   ·He made arrangements to flee to Australia via Peshawar with the help of a smuggler.

   ·He fears that if he is returned to Pakistan he will be killed by the Taliban because he refused to work for them and he escaped their camp.

   ·He also fears harm as a failed asylum seeker who spent time in the West.

9. The grounds as set out in the amended application for review are as follows:

   1. The IAA failed to apply the correct test in determining whether to consider new information, in that it did not correctly understand or apply s 473DD(b)(i) having regard to CSR16 v Minister for Immigration [2018] FCA 474.

   2. The IAA failed to consider the applicant’s submission, particularly in relation to the reasonableness of relocation made to the IAA.

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

Ground 1.

1. The relevant provision for consideration under this ground is not s. 473DD(b)(i) as set out in ground 1, but rather, s. 473DD(b)(ii). Both parties proceeded on that basis during the course of argument. The reference to s. 473DD(b)(i) rather than to s. 473DD(b)(ii) seems to have been a typographical error.

2. Section 473DD provides 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.

3. The question in issue concerned the contents of a submission provided by the applicant to the Authority on 17 May 2018 as set out in [4] – [6] inclusive of the Authority’s reasons. That submission concerned the applicant’s claims about fearing harm in Lahore, as well as the credibility of the applicant’s claim that there was a bomb blast in his CD shop. At [5] of its reasons, the Authority noted that the submission contained new information which was not before the delegate when the decision was made to refuse to grant the visa. The applicant had made a new claim that the Taliban had continued to look for him since his departure for Australia, the last time being in December 2017.

4. The Authority found that because the applicant could have raised such matters with the delegate prior to the making of the delegate’s decision, the provisions of s. 473DD(b)(i) did not apply. It was open to the Authority to so find.

5. The Authority also referred at [5] of its reasons to the applicant having claimed that since he arrived in Australia he had allegedly received multiple phone calls from family and friends about the Taliban allegedly looking for him. The Authority noted that the applicant had denied that such was the case at his SHEV interview, and it further noted that the applicant had never raised such allegation on any other occasion with the delegate in spite of the applicant having a significant opportunity to have done so after having been requested to put forward all of his claims “in full”. The Authority, having obviously considered the credibility of such “new information”, then found, as it was entitled to do on a question of fact, as follows:

   “In the circumstances I am not satisfied that the claim is credible personal information which was not previously known in accordance with s. 473DD(b)(ii) and I have not considered this claim.”

6. The applicant submitted that the IAA, by expressing itself as it did, had failed to lawfully consider the applicant’s new information because it erroneously treated the expression “which was not previously known” in s. 473DD(b)(ii) as meaning “not previously known to the applicant”, rather than as not having previously been known either to the applicant or the decision maker. The applicant, by Mr Aleksov of Counsel, relied upon Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [106] per Kenny, Tracey and Griffiths JJ where it was said:

   [106] “We also respectfully agree with White J’s conclusion and reasons for rejecting the Minister’s claim in support of his notice of contention in BVZ16 that, on the proper construction of s 473DD(b)(ii), the phrase “which was not previously known” should be construed as meaning “not previously known to [the referred applicant]”. The provision applies to new information which is given to the IAA by a referred applicant which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection. This is made clear by [29] of the Supplementary Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which, in addressing revised paragraph 473DD of the Bill said (emphasis added):

   This new provision will extend the types of “new information” that a referred applicant may present to the IAA to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected consideration of the referred applicant’s asylum claims by the Minister.”

7. First, the IAA found that the new information was something which was known to the applicant, and which could have been brought to the attention of the delegate, prior to the handing down of the delegate’s decision. Second, the first respondent, by Mr Psaltis of Counsel, submitted that when [5] of the Authority’s reasons are read in context, the Authority must be taken to have not known of the matters which constituted the new information which was contained in the 17 May 2018 submission. There is force in that submission. Nowhere in [5] is there any acknowledgement by the Authority that it was privy to any of the new information put before it by the applicant. Had it been privy to the information the subject of the applicant’s new claims, one would have expected the Authority to have said so. There is no substance to the applicant’s submission that the Authority misconceived its duty to properly consider whether the new information was, or was not, credible personal information which was not previously known to either it or the applicant. The IAA considered the information and found that it was not credible personal information.

8. In any event, the IAA, used the words “in accordance with s. 473DD(b)(ii)” immediately after its reference to the words “personal information which was not previously known”. In doing so, it must be inferred that it did so having due regard to relevant principle as enunciated in the reasons of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [42] where his Honour said:

   [42] “The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not.  In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed.  It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.”

9. The applicant also submitted that the IAA failed to lawfully consider the applicant’s request because it had not assessed whether the new personal information put forward by the applicant was credible personal information or not. There is no substance to such submission. The Authority clearly found that the new information was not credible. In doing so, it had set out in detail its reasons for so finding, namely that the applicant had previously denied at his SHEV interview that the Taliban had been looking for him, as well as pointing out that the applicant had never raised such issue on any other occasion with the delegate in spite of him having had the opportunity to do so in circumstances where he had been requested to put all of his claims to the delegate ‘in full’.

10. The Authority was not required to refer to every piece of evidence and every contention made by an applicant in its written reasons when arriving at its decision, nor should the reasons of the Authority be examined by an eye too keenly attuned to error. As was said by French, Sackville and Healy JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47]:

    “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

11. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as did 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.”

Ground 2

1. It is submitted on behalf of the applicant that the Authority failed to properly engage in a consideration of the applicant’s claims about the unreasonableness of his being required to relocate to Lahore. The respondent contends that such submission asks that this Court undertake an impermissible merits review of a factual finding, and that such ground ought to be dismissed on that basis alone.

2. The relevant factual finding was that as set out in [33] of the reasons of the Authority, which finding was as follows:

   33. Having carefully considered the applicant's personal characteristics and circumstances, and the range of other evidence before me, I am not satisfied that there is a real chance of harm to the applicant in Lahore, including on the basis of his Pashtun ethnicity, as a former CD/DVD salesman in Peshawar, as escaped prisoner of the Taliban in Swat or as a result of the security situation in Lahore.

3. Having accepted that the applicant had had his CD/DVD shop bombed by the Taliban in Peshawar in 2012, and having also accepted that the applicant had subsequently been abducted by the Taliban in Swat and detained in a mountain camp ([25] of Authority reasons), the Authority at [26] – [32] inclusive carefully analysed and set out in detail how country information suggested that the security situation in Pakistan had improved, and how the security situation in Lahore, in particular, tended to be better than in other areas of Pakistan. At [31] the Authority found that it was not satisfied that the Taliban would track the applicant down in Lahore, the applicant having very little profile to speak of. The Authority also found that the applicant would not be of any interest to the Taliban in Lahore.

4. At [32] of its reasons, the Authority found that the applicant was adaptable to changed circumstances, and that in the light of DFAT country information suggesting that there were good economic opportunities for employment and business in areas such as Lahore, there was no basis for believing that the applicant would not be prevented from establishing himself in Lahore through previous business contacts and through family contacts. It noted that the applicant had adapted to life in Australia in that regard. The applicant’s wife continues to live in Lahore, and her brother works for the government. It was not satisfied that if the applicant relocated to Lahore, he or his family would have their capacity to subsist threatened.

5. The Authority at [29] of its reasons noted that pursuant to the provisions s. 5J(1)(c) of the Act the applicant would not have a well-founded fear of persecution unless the real chance of harm related to all areas of Pakistan. The Authority was entitled to find that there was no basis for the applicant having a well-founded fear of persecution should he be returned to Pakistan and live in Lahore.

1. It cannot be said that the Authority, when analysing matters of relevance before it in respect of such finding, failed to make an obvious enquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27] where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

2. Nor could the decision 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] – [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.”

3. The applicant has failed to demonstrate jurisdictional error on the part of the Authority.

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

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 29 August 2019