EXW18 v Minister for Home Affairs

[2019] FCCA 1248

FEDERAL CIRCUIT COURT OF AUSTRALIA

EXW18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1248

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings – failure of applicant to demonstrate jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5H(1), 5J, 36(2), 473CB, 476

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant: EXW18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 988 of 2018

Judgment of: Judge Egan

Hearing date: 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Brisbane

Delivered on: 8 May 2019

REPRESENTATION

Applicant: In Person

Solicitors for the First Respondent: Mr Gardner, Solicitor of MinterEllison

ORDERS

1. That the application for review filed on 21 September 2018 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 988 of 2018

EXW18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 30 May 2013 as an unauthorised maritime arrival.  He claimed that he was an ethnic Pashtun Sunni Muslim from Khyber Pakhtunkhwa province in Pakistan.

2. On 27 September 2016, the applicant applied for a safe haven enterprise visa (subclass 790).  On 13 February 2018, the applicant was invited to attend an interview in relation to his visa application.

3. On 28 March 2018, a delegate of the Minister refused to grant the applicant a SHEV.  The delegate’s decision was a fast track reviewable decision and was referred by the Minister to the IAA for review on that date.

4. On 29 April 2018, the applicant provided a written submission by email to the IAA.  The applicant did not provide any further material to the IAA.

5. On 4 September 2018, the IAA affirmed the delegate’s decision not to grant the applicant a SHEV.

6. On 21 September 2018, the applicant sought review of the decision of the IAA pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’).

7. The applicant’s claims for protection were set out in [5] of the reasons of the authority as follows:

   ·“He was born on 12 January 1988 in Batti village in the Mansehra District of Khyber Pakhtunkhwa in Pakistan and he working on the family farm.

   ·In October 2005 an earthquake destroyed his home and killed his brother so the family moved to his uncle’s place in Kotri, Hyderabad before securing their own accommodation.

   ·In 2008 he opened a restaurant in Hyderabad. A few months after it was established he had visits from members of the Muttahida Qaumi Movement (MQM) who targeted Pashtun businesses for money.

   ·The MQM came regularly to take money from the business and by 2010 he had to sell the restaurant as it was no longer profitable for him to run.

   ·Once he sold the restaurant he feared that the MQM would steal the profit so in September 2010 he and his family moved back to Mansehra and he helped his father rebuild the family home.

   ·In approximately July 2011 the Taliban came to the door of their home and requested lodging for the night. His father refused. Three to four days later the family received a warning letter from the Taliban and they worried about how to keep the family safe.

   ·A month later he moved back to Hyderabad to try to seek work and a few weeks after that the rest of his family moved to Haripur in Khyber Pakhtunkhwa where his father started a fruit and vegetable business.

   ·He could not find work in Hyderabad because he is Pashtun and feared harm from the MQM and he could not move back to Khyber Pakhtunkhwa because of the warning from the Taliban so he decided to leave the country in April 2013 and he departed legally through Karachi Airport.

   ·He fears that if he is returned to Pakistan he will face harm from the MQM and the Taliban as a failed asylum seeker who sought asylum in a Western country. He will be viewed as anti-Islamic and against their political beliefs.”

8. The applicant’s originating application set out the grounds of the application for review as follows:

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

9. The applicant claims to have a genuinely held fear of harm should he be returned to Pakistan due to his belief that he is a person of interest to both the Muttahida Qaumi Movement (MQM) and also the Taliban, namely, either the Afghan Taliban or the Pakistan Tehrik-i-Taliban (TTP).  The applicant asserts that he is a person to whom Australia owes protection obligations.

10. 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 of the department pursuant to the provisions of section 473CB of the Act.

11. At [7]-[12] inclusive of its reasons, the authority dealt with the applicant’s assertions that he would be targeted and killed by members of the MQM on the basis of his imputed political opinion and for refusing to pay over the proceeds of his restaurant in 2010.  The IAA did not accept that the MQM had targeted the applicant beyond his being of Pashtun ethnicity and also by reason of him having a business which could be the subject of extortion.  The IAA did not consider credible the applicant’s claims that the MQM had continued to inquire about him after he closed his business.

12. The authority found, at [11] of its reasons, that Hyderabad had a large base of both MQM and ANP supporters.  It accepted that the parties carried on similar operations in Hyderabad and that crime, including ethnically targeted crime, such as extortion of Pashtun businesses, took place.  The authority referred to country information about widespread criminality in Sindh, including the use of extortion by men claiming to be representatives of MQM, that extortion taking place against the Pashtun community.

13. Though the authority accepted that the applicant had been the subject of extortion between 2008 and 2010, it did not accept that the applicant had been targeted by MQM beyond him being a Pashtun and his owning a business.  The authority did not consider that the MQM would not have found the applicant, as alleged, had members of MQM wanted to so find him.  The authority did not accept that the MQM maintained any interest in the applicant after the sale of his business in 2010 (see [12] of authority reasons).

14. The authority fairly dealt with the applicant’s claims that he feared harm at the hands of the MQM and addressed all relevant issues in that regard.

15. At [13]-[18] inclusive of its reasons, the authority dealt with the applicant’s assertions that he would be targeted and killed by the Taliban should he be returned to Pakistan by reason of his alleged refusal to assist the Taliban with accommodation issues in 2011, or by reason of his allegedly being an imputed supporter of the West and as a failed asylum seeker.

16. The IAA accepted that the Taliban was, and continues to be, active in Khyber Pakhtunkhwa, but the IAA did not accept that the applicant’s family was in hiding from the Taliban, or that they were on a Taliban watch list.  The authority, in that regard, referred to the applicant’s vague and contradictory account of the alleged visit from the Taliban and subsequent warning letter at [17] of its reasons.  Different accounts were given by the applicant as to the contents of the letter, which the authority did not accept was ever brought to Australia by the applicant.

17. At [18] of its reasons, the authority also found it implausible that if the applicant and his family were scared that they were going to be killed by the Taliban or supporters of the Taliban, that they would have stayed in their home for one or two months before leaving.  It was noted that the applicant’s family moved to Haripur, which was located in the same province, and that his father ran a fruit and vegetable business at that place, the applicant stating that his father was able to support his family by doing so.  The authority did not consider that those were the actions of a man who did not want to be located because of a fear of being killed by the Taliban.

18. It was noted that the applicant stated that at the end of 2017, his family had moved to Rawalpindi because of his mother’s kidney problems and because she needed to attend the hospital there.  The applicant did not claim that his family had been harmed by the Taliban in Haripur or Rawalpindi.  The authority did not consider that the applicant was truthful when giving an account about feared harm from the Taliban, finding that his claims were made to enhance his claims for protection.

19. As to the applicant’s claims that he feared harm from the Taliban, the authority carefully examined the applicant’s claims and dealt with his assertions that he would face harm should he be returned to Pakistan.  It appropriately dealt with the allegations made by the applicant.

20. At [19] of its reasons, the authority accepted that between 2011 and 2013, the applicant remained in Hyderabad, during which time he played cricket and watched movies until his money started to run out.  It also accepted that the applicant lived in Hyderabad on the earnings from the sale of his business.  It accepted that the applicant had departed the country legally in 2013 after he had purchased an airline ticket, and that the applicant had not subsequently returned.

21. At [20] and [21] of its reasons, the authority set out the relevant refugee criteria and well-founded fear of persecution criteria as respectively contained in sections 5H(1) and section 5J of the Act.

22. At [23] of its reasons, the authority dealt with the assertion made by the applicant that he was on a list of people that the MQM and Taliban had for the purpose of locating him, torturing him and killing him.  The authority found that the applicant had never been of interest to the Taliban for any reason and the authority did not consider that the applicant was on any watch list.  It also did not accept that the applicant’s family feared harm from the Taliban and were in hiding.

23. It found that the applicant did not appear to have any kind of profile that would cause him to be targeted by the TTP.  He did not claim to be a member of any religious or cultural minority group that TTP were known to target, and he had no identifiable links to the Pakistani government or to the security forces, nor had he ever been engaged in any political or religious activity which could be perceived to be in opposition to the TTP.

24. Also, the applicant did not claim that his family had come to any harm from the Taliban in spite of remaining in the Khyber Pakhtunkhwa region until the end of 2017.  The authority was not satisfied that there was a real chance that the applicant or his family would be targeted by the Taliban for those claimed reasons if the applicant returned to Pakistan.

25. At [24] of its reasons, the authority found that the applicant’s business had been targeted for extortion by the MQM in Hyderabad between 2008 and 2010 because some parties had used extortion to fund their operations.  The authority also found that neither the applicant nor his immediate family had encountered any further problems with MQM since the business had been sold in 2010.

26. At [26] of its reasons, the authority relied upon Department of Foreign Affairs and Trade country information which assessed that Pashtuns did not face a higher degree of risk of violence than other groups based on their ethnicity.  The authority was satisfied that not only was the risk of violence against Pashtuns not higher than against other ethnic groups, but on the evidence, the authority did not consider that the applicant faced a real risk of serious harm on the basis of his Pashtun ethnicity.

27. Country information provided through DFAT was noted as having assessed that there was generally only a low level of official discrimination in Pakistan because of religion, and that that tended to be targeted toward minorities.  The authority did not consider that the applicant faced a real chance of harm from the Taliban based upon his Pashtun ethnicity and his Sunni religion or his previous experiences in Pakistan.  The authority found that the applicant did not face a real chance of serious harm from MQM or the Taliban on the basis of his Pashtun ethnicity or for any other reason.

28. As to the question of the applicant fearing harm by reason of his being a failed asylum seeker and a returnee from Western civilisation, the authority, at [27]-[29] of its reasons, dealt with those assertions.  At [28] of its reasons, the authority noted that the most recent country report from DFAT set out the treatment of returnees to Pakistan.  DFAT assessed that those who returned voluntarily and with valid travel documentation were typically processed like any other citizen returning to Pakistan.  Only those who were returned involuntarily or were travelling on emergency travel documents were likely to attract attention from authorities upon arrival.

29. Because the applicant had disposed of his passport en route to Australia, he was found to be likely to be questioned upon his return at the airport so as to ascertain whether he left the country illegally, was wanted for crimes in Pakistan, or whether he had committed any offences whilst abroad.  It was noted that those who had left Pakistan on valid travel documentation and had not committed any other crimes were typically released within a couple of hours.  The authority found that because the applicant had left Pakistan legally and did not have any profile of interest, the applicant would be released after a couple of hours, in conformity with country information.  The authority found that it was not satisfied that the applicant faced any chance of harm from Pakistan authorities, MQM or the Taliban as a result of him seeking asylum or as a result of his having spent time in the West.

30. The authority found, at [30] of its reasons, that the applicant did not meet the requirements of a refugee as set out in section 5H(1) of the Act, nor that the applicant met the section 36(2)(a) criteria.

31. Based on those considerations, the authority found, at [33] of its reasons, that it was not satisfied that the applicant faced a real risk of suffering any harm, including significant harm, should he be returned to Pakistan.  It was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there was a real risk that he would suffer significant harm.

32. At [35] of its reasons, the authority found that there were no 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. It found that the applicant did not meet the complementary protection criteria as set out in section 36(2)(aa) of the Act.

33. The grounds for review as set out by the applicant are without any particularity.  It has been held that in such circumstances, that is a ground for dismissing the application. [1]

    [1]        WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per

34. The Court is of the view that the authority properly assessed each of the claims made by the applicant.  The Court considers that the authority did not fail to make any obvious inquiry about a critical fact, and relies in that regard upon the judgment of 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.”

35. 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.”

1. 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] 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.”

2. The application for review is without merit.  No jurisdictional error has been demonstrated on the part of the authority.

3. The application for review is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 6 June 2019

         Gilmour J;  SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] per
         Reeves J.