ETP19 v Minister for Immigration
[2020] FCCA 1825
•10 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ETP19 v MINISTER FOR IMMIGRATION | [2020] FCCA 1825 |
| Catchwords: MIGRATION – Application for a Safe Haven Enterprise (subclass 790) visa – whether the delegate failed to consider the applicant’s claim – whether the delegate failed to give proper, genuine or realistic consideration to the relevant integer of the claims – whether the delegate engaged in fact finding or decision making that was unreasonable, illogical or irrational – whether the delegate made a jurisdictional error – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5, 36, 57, Part 2 Division 3 |
| Cases cited: FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 SZATU v Minister for Immigration and Citizenship (2007) 233 CLR 18 |
| Applicant: | ETP19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 3149 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 6 July 2020 |
| Date of Last Submission: | 6 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 10 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Daawar, Ariana Defence Lawyers |
| Solicitors for the Respondents: | Mr Downie, Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The Applicant to pay the First Respondent’s costs fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3149 of 2019
| ETP19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan. The applicant arrived in Australia as an unauthorised maritime arrival on 3 May 2013. The applicant lodged an application for a Safe Haven Enterprise (subclass 790) visa (SHEV) on 7 December 2016.
In a decision dated 6 November 2019, a delegate of the Minister (“the delegate”), refused to grant the applicant a protection visa.
The applicant now seeks judicial review of the Minister’s decision directly in this Court, as he is ‘an excluded fast track applicant’ for the purposes of s 5(1)(a)(iii) of the Migration Act 1958 (“the Act”). The applicant was previously refused a Refugee Visa Application in Canada in 2008, while using a false name of MK and was returned to Pakistan.
The Minister’s Decision
Part 3 of the delegate’s decision, concerns the identity of the applicant. Based on various data, including fingerprints, the delegate was satisfied as to the identity and nationality of the applicant.
Part 4 of the delegate’s decision, concerns the claims made by the applicant. This includes fear of the Taliban due to the applicant being a supporter of the Awami National party (“ANP”), his brother being killed by the Taliban and the applicant informing on the Taliban to the Army.
Part 5 of the delegate’s decision, centres on the credibility of the applicant. It is noted that despite being warned of the need to be truthful in the information the applicant provided, he provided false evidence to Australian authorities about his previous travel to Canada, using a false name and passport and his failed claim for refugee protection. The applicant continued to provide false information, until such a point as it was clear that the authorities had a fingerprint match to the identity he had used in Canada. It was only at that point, that the applicant made admissions as to the truth.
Part 6 of the decision deals with the applicant’s claims. The delegate noted that political ‘officials and activists’ are targeted by terrorist groups and political rivals. Non-terrorist political violence is not uncommon in Pakistan. According to a Department of Foreign Affairs and Trade (“DFAT”) country information report, dated 20 February 2019, the Department assesses that ANP members face a moderate risk and ANP leaders face a moderate to high risk of terrorist -related violence, based on the ANP’s opposition to the Tehreek-e-Taliban Pakistan (“TTP”).
The delegate noted at paragraph 89 of the decision, that there was conflicting evidence as to whether the applicant was an active member of the ANP, or that he wasn’t much involved in it. At paragraph 92 of its decision, the delegate concluded the risk to the applicant would be lower than moderate, on the basis that he admitted that his actual involvement with the ANP was, in his own words, of being “a general support of the party”.
At paragraph 93 of the decision, the delegate concluded on balance, it was not satisfied that there was a real chance, that if the applicant were returned to Pakistan now and in the reasonably foreseeable future, he would be persecuted for having been a “general supporter” of the ANP.
Paragraphs 94 to 101 of the decision, the delegate deals with issues associated with the death of his brother ‘R’, who it was claimed was a member of high office in the ANP. At paragraph 98 of the decision, the delegate found that the applicant’s brother was killed through an act of violence, by unidentified persons firing at a car, which he was in. There was no conclusive information as to who fired the shots at the car and the delegate was not able to find any information to support the applicant’s claim, that his brother was specifically targeted by the Taliban and killed for being a member of high office in the ANP.
Accordingly, the delegate concluded that they were not satisfied there was a real chance that the applicant would be persecuted for the reason claimed in regards to the death of his brother R, 11 years ago.
Paragraphs 102 – 108 of the delegates decision deal with a fear of harm, as a result of members of the applicant’s family being members of the ANP. The delegate noted that the applicant asserted that his cousin and his father’s cousin, were both killed by the Taliban due to either holding high office, or having been imputed with holding high office in the ANP. The applicant also asserts that another cousin was seriously injured in a blast in 2012. In paragraph 106 of the decision, the delegate notes they are unable to find any cometary specifically, in regards to any risk of harm, due to familial association with the ANP. The delegate concluded that the risk to the applicant would be low, given that the delegate found he had not been a political official or party activist in the ANP.
Paragraphs 109 to 120 of the delegates decision deal with fears related to the applicant informing on the Taliban, due to working at a petrol station and reporting Taliban members to the Army for taking petrol without paying. The delegate accepted the claim and concluded the applicant would face a real chance of serious harm from local people, if he were returned to his home region. Having concluded this matter, the delegate then considered whether or not the applicant could relocate to another area within Pakistan. The delegate noted the large urban centres such as Karachi, Islamabad and Lahore, have ethnically and religiously diverse populations and offer some anonymity for people fleeing violence by non-state actors.
The delegate concluded that the applicant does have safe and lawful access to other areas of Pakistan and could safely relocate to Islamabad, Lahore or Karachi. Accordingly, the delegate found that a real chance of persecution does not relate to all areas of the receiving country, being Pakistan. Accordingly, the applicant did not meet the protection criteria in s 36(2)(a) of the Act .
In relation to complimentary protection requirements, at paragraph 131 of the decision, the delegate gave consideration as to whether or not, there was a real risk of significant harm due to generalised violence in areas of Pakistan, such as Lahore and Islamabad. The delegate was not satisfied that there were serious human rights violations in Pakistan that were so widespread or severe, that almost anyone would be potentially affected by them. The delegate noted that a non-citizen, must demonstrate that he/she faces a personal risk of harm, in order to satisfy the criterion for a protection visa in s 36(2)(aa) of the Act.
The delegate noted that there had been a drop in violent incidents in Pakistan in 2016 as compared to 2015. Having considered the country information against the applicant’s personal circumstances, the delegate was not satisfied that the applicant would be disproportionately at risk of harm, on the basis of the general security situation in Lahore or Islamabad. Further, the delegate was satisfied that the proposed relocation was reasonable in a practical sense and that whilst it was accepted that the applicant may face living conditions that would not be without difficulties, the delegate did not accept the applicant would be unable to find work, reside and live in Lahore or Islamabad.
The delegate found it was reasonable to accept that the applicant may have some funds available to him, to assist in establishing himself in either Lahore or Islamabad, with the choice of his family being able to join at a later time. Accordingly, the delegate was not satisfied that the applicant met the complimentary protection criteria in s 36(2)(aa) of the Act.
Grounds of Appeal
The grounds of the application are as follows, verbatim:
1. In its assessment of whether the Applicant is a refugee and in need of protection for the reasons highlighted in his protection claim being active member of ANP, political activities and close family association with leaders and high profile members of ANP; and whether the Applicant life will be in significant danger or harm, the Respondent, Minister for Home Affairs:
a) Failed to consider the claim and to give proper, genuine or realistic consideration to the relevant integer of the Applicant Claims and risks if he is returned; and or
b) And engaged in a fact-finding or decision making in a manner which was unreasonable, illogical or irrational
c) Concluded the claim Considering mistakes the Applicant made in his forms, or had fear to disclose or was it ill advised not to disclose
d) Failed to consider and give proper, genuine and realistic consideration to the merits of the Applicant Claim, and consequently unfairly excluded from fast track review process by IAA or AAT
Particulars
The applicant claimed he is a member of the ANP and his family is strongly involved in ANP struggle of its aims and objectives which are in opposition to the Taliban radical extremist movement’s aims, objectives and agendas. Being an active element of this struggle the Applicant and his family members had been sacrificed, harmed and threatened. The applicant provided evidence to verify his claims. The applicant highlighted the threat of harm if he is returned for the reason raised in his claim. The Responded failed to consider the protection claim and give proper, genuine realistic and fair consideration to the various elements of the claim and the risked of returned, but relied on the Applicant mistakes in the forms and the non-disclosure of some information which he had fear to disclose or was ill advised not to disclose at the various stages of the application process. However eventually after receiving legal advice from his legal team and truthfully disclosed everything he was required. The Responded ignored the factual claim but concluded his/her decision considering his mistakes of nondisclosure.
The Respondent failed to consider and give proper, genuine and realistic consideration to the merits of the Applicant claim and unfair excluded the Applicant’s application from merits review by the IAA or AAT.
The Applicant’s Submissions
Despite Court orders, no written submissions were filed in support of the applicant’s application. The solicitor for the applicant indicated that he had experienced considerable difficulties obtaining instructions from his client. Accordingly, he sought leave of the Court to rely upon oral submissions only. The solicitor who appeared for the first respondent, did not object to that course of action, subject to the capacity to provide additional submissions, should any new point arise, not covered in the first respondent’s written submissions.
Firstly, the solicitor for the applicant conceded that the applicant met the various requirements for being an “excluded fast track applicant”. In relation to the issues raised in the grounds of the application, it is submitted that the delegate did not engage in an active intellectual consideration of the applicant’s claims and had been dismissive of them, due to the adverse credit findings the delegate made about the applicant. These centred on the mistruths the applicant told Australian authorities about his previous travel to Canada and his failed refugee application in Canada.
The solicitor for the applicant submitted that this amounted to a jurisdictional error, on the part of the delegate.
The First Respondent’s Submissions
The first respondent firstly noted that the applicant was given an opportunity in September 2018, to comment on adverse information in the possession of the Department that the applicant had failed to disclose that he had been refused a refugee claim in Canada in 2008. Further, the applicant had failed to disclose he previously visited the United States of America. The delegate also found the applicant provided false information in relation to the prior use of aliases and a false passport used in his prior travel to the United States of America and Canada.
In relation to the pleaded ground for judicial review, it was submitted that the conclusion the delegate reached, were reasonably open to it on the evidence and otherwise, made in accordance with relevant procedural fairness obligations contained in Part 2 Division 3 Subdivision AB of the Act, which is an exhaustive statement of the natural justice hearing rule, in relation to the matters it deals with. The delegate did not dispose of the matter based on the credibility findings alone, but addressed the claims by reference to the relevant country information.
In accordance with the Minister’s obligations, under s 57(1)(a)(ii) of the Act, the delegate gave the applicant details of adverse information in the Minister’s possession, which might be used to make an adverse decision in respect of the visa application and the fact that he was an “excluded fast track review applicant”. No procedural error is apparent in the delegate’s decision.
The delegate was not satisfied the applicant faced any real chance of serious harm, based on his general support of the ANP, his familial association with the ANP or based on the fact that his brother had been killed by unknown persons.
It was submitted that the delegate considered the reasonableness of relocation as required by s 36(2B)(a) of the Act and found the country information indicated that the applicant would be able to renew his computerised national identity card in Lahore, Islamabad, Rawalpindi (or indeed online). The delegate found that the applicant’s personal and economic circumstances, rendered it reasonable for him to relocate to Lahore or Islamabad.
Finally, the first respondent acknowledged that the applicant may have been affected by the unintentional access to personal information in the public domain. The delegate found that the applicant was of no interest to Pakistani authorities when he departed Pakistan legally in 2013 and on the basis that the applicant had made no claims in regard to being involved in anti-government activity either in person or online, he did not face a chance of real harm on that basis.
Consideration
The first issue for consideration is the jurisdiction of the Court to hear this matter. The Court notes the concession by the applicant’s legal representative that the applicant is an “excluded fast track applicant”, the Court nonetheless, has considered the issue. An “excluded fast track applicant” is defined in s 5(1)(iii) of the Act to include a person who, in the opinion of the Minister:
(iii) has made a claim for protection in a country other than Australia that was refused by that other country;
It is common ground that the applicant was refused a protection visa in Canada and was removed to Pakistan on 11 July 2008. The Court is reasonably satisfied that the effect of this, is that the first avenue of review of the delegate’s decision, is judicial review by this Court (see FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 at [35] – [41]). The Court is not satisfied that the last claim within the applicant’s particulars, that he was unfairly excluded from merits review by the Tribunal or the IAA, has merit. This part of the claim accordingly fails.
As set out by the first respondent, the delegate gave careful consideration to each of the applicant’s claims. The Court is reasonably satisfied that the delegate did give proper genuine and realistic consideration to the applicants claims of being an active member of the ANP, his political activities and close family association with leaders in high profile members of the ANP and based on relevant country information and a reasonable evaluation of the applicants claims, that his life would not be in significant danger or harm if returned to Pakistan.
The delegate accepted that the applicant would be unable to return to his home region, due to a previous incident where he had informed the local authorities about members of the Taliban stealing petrol. The delegate found however, that the applicant would be able to reasonably relocate within Pakistan, specifically to Karachi or Lahore, without suffering serious harm (see SZATU v Minister for Immigration and Citizenship (2007) 233 CLR 18).
The Court is not satisfied that the adverse credibility findings by the delegate tainted or adversely impacted improperly on the delegate’s consideration, of the applicant’s substantive protection claims. They were not dispositive of the applicant’s claims.
The Court is satisfied that there is nothing unreasonable, illogical or irrational in the delegate’s findings. The findings were reasonably open to the delegate, based on the information provided by the applicant, together with country information that was before the delegate. No jurisdictional error is apparent on the pleaded ground.
The Court notes the first respondent’s submissions, in respect of the regrettable data breach by Australian authorities. The Court is also satisfied that this would not adversely impact on the applicant’s profile if returned to Pakistan.
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 10 July 2020
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