EXW18 v Minister for Home Affairs

Case [2020] FCA 1802

FEDERAL COURT OF AUSTRALIA

EXW18 v Minister for Home Affairs [2020] FCA 1802

Appeal from: EXW18 v Minister for Home Affairs & Anor [2019] FCCA 1248
File number: QUD 336 of 2019
Judge: ANASTASSIOU J
Date of judgment: 16 December 2020
Catchwords: MIGRATION – appeal from the Federal Circuit Court –Appellant’s claims for protection based on threats of extortion – whether threat of extortion sufficient to amount to significant harm within the meaning of s 36(2A) of the Migration Act 1958 (Cth) – appeal dismissed
Legislation:

Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 36(2A), 476

Crimes Act 1900 (NSW), s 99

Criminal Code Act 1899 (Qld), s 415
Cases cited:

AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; 231 FCR 452

Buck v Bavone [1976] HCA 24; 135 CLR 110

CRI026 v The Republic of Nauru [2018] HCA 19; 92 ALJR 529

Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610

Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; 207 FCR 211

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559

Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510

QAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9

Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; 75 ALJR 470

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588

Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 60
Date of hearing: 19 November 2019
Counsel for the Appellant: Mr P. Bodisco
Solicitor for the Appellant: ABU Legal
Counsel for the First Respondent: Mr H. Bevan
Solicitor for the First Respondent: Minter Ellison
Counsel for the Second Respondent: The Second Respondent filed a submitting notice and did not appear

ORDERS

QUD 336 of 2019
BETWEEN:

EXW18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

16 DECEMBER 2020

THE COURT ORDERS THAT:

1.Leave to raise new grounds of appeal is refused.

2.The appeal is otherwise dismissed.

3.The Appellant pay the First Respondent’s costs of and incidental to the appeal.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. The Appellant appeals from a judgment of the Federal Circuit Court of Australia: EXW18 v Minister for Home Affairs & Anor [2019] FCCA 1248. The Circuit Court found no error in the decision of the Immigration Assessment Authority, which had affirmed a decision of a delegate of the Minister for Home Affairs to deny the Appellant a Safe Haven Enterprise visa.

  2. For the reasons…

Continue reading EXW18 v Minister for Home Affairs

Sign in free to access the full text

Details
AGLC
EXW18 v Minister for Home Affairs [2020] FCA 1802
Case
[2020] FCA 1802
Decision Date

CaseChat Overview and Summary

The Appellant, a citizen of Pakistan, appealed against a decision of the Administrative Appeals Tribunal (AAT) affirming the Minister for Home Affairs' refusal to grant him a protection visa. The Appellant claimed that if returned to Pakistan, he would be targeted and killed by the Muttahida Qaumi Movement (MQM) for refusing to pay them proceeds from the sale of his restaurant in 2010 and by the Taliban for refusing to offer them hospitality and accommodation in 2011. Additionally, he feared being targeted and killed by either the Taliban or the MQM for being a supporter of the West and a failed asylum seeker to Australia.

The central legal issue in this case was whether the Appellant's claims for protection based on threats of extortion were sufficient to amount to significant harm within the meaning of section 36(2A) of the Migration Act 1958 (Cth). The Appellant argued that the AAT erred in its evaluation of the risk of being targeted for extortion as a real risk of significant harm. He contended that the AAT applied the incorrect legal test, failed to consider the consequences of refusing to meet extortion threats, and reasoned illogically and irrationally.

The Court found that the AAT properly understood the concept of "significant harm" as defined by section 36(2A) of the Act and applied that concept in assessing the prospective risk of harm to the Appellant. The Court determined that the AAT's reasoning process was not erroneous and that the risks faced by the Appellant, if any, were speculative and contingent on him engaging in business activities. The Court concluded that the Appellant's claims did not meet the threshold of significant harm as required by the Act.

The Court dismissed the appeal and ordered that the Appellant pay the Minister's costs of and incidental to the appeal. The Court also refused leave to raise new grounds of appeal.

Orders

Orders of the court

1. Leave to raise new grounds of appeal is refused.

2. The appeal is otherwise dismissed.

3. The Appellant pay the First Respondent’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the appeal is dismissed. BACKGROUND The Appellant is a citizen of Pakistan. He is a Pashtun Sunni Muslim man from Mansehra, Khyber Pakhtunkhwa Province in Pakistan. In October 2005, an earthquake destroyed the Appellant’s family home in Mansehra, and he and his family moved to Hyderabad. In 2008, he opened a restaurant in Hyderabad. From time to time, members of the Muttahida Qaumi Movement (MQM) would come to his shop and demand money from him. If he refused, the MQM told him they would destroy his restaurant and hurt him. The Appellant eventually decided that he could no longer operate the business due to the ongoing extortion, and sold it in 2010. He and his family then moved back to Mansehra. The Appellant claimed that in 2011 a man from the Taliban knocked on the door of the family home and requested lodging, which the Appellant’s father refused. Soon after this incident, the family received a warning letter from the Taliban, stating that as the family had refused to support the Taliban, killing them would be permissible for failing to support Islam. Fearing for their safety, the family relocated within Khyber Pakhtunkhwa Province, and the Appellant returned to Hyderabad to seek employment. He was unable to find work in Hyderabad because people were reluctant to hire him because he is Pashtun and they feared being targeted by the MQM. The Appellant lived off the money from the sale of his restaurant until February 2013, at which point he made arrangements to travel to Australia. The Appellant arrived in Australia on 30 May 2013 as an unauthorised maritime arrival. On or around 26 September 2016 the Appellant applied for the visa. In February 2018, he was invited to attend an interview to discuss his visa application with a case officer at the Department of Immigration and Border Protection. The Appellant claimed to fear significant harm if returned to Pakistan as he would be targeted and killed by members of the MQM for refusing to pay them the proceeds from the sale of his restaurant in 2010. He also feared he would be targeted and killed by the Taliban for refusing to offer them hospitality and accommodation in 2011. He claimed he would be targeted and killed by either the Taliban or the MQM for being a supporter of the West and a failed asylum seeker to Australia. On 28 March 2018, a delegate of the Minister refused to grant the appellant the visa. The delegate’s decision was a fast track reviewable decision and was referred by the Minister to the Authority for review. On 29 April 2018, the Appellant made written submissions to the Authority. On 4 September 2018, the Authority affirmed the decision of the Minister’s delegate not to grant the visa on the basis that Australia does not owe the Appellant protection obligations under ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth). Section 36(2) provides:36 Protection visas—criteria provided for by this Act…(2) A criterion for a protection visa is that the applicant for the visa is:(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Appellant’s claims for protection pursuant to s 36(2)(aa) of the Act turn upon the prospective risk of extortion he faces if he is removed to Pakistan. That risk is contingent upon the Appellant engaging in business activities, or possibly business activities of a kind which attracted the attention of the MQM or the Taliban in the past. It was not submitted on behalf of the Appellant that he would face a risk of harm for other reasons if he is removed to Pakistan. Consideration At the hearing, the grounds of appeal effectively coalesced into a single proposition: that the Authority erred in evaluating whether the risk of the Appellant being targeted for extortion constituted a real risk of significant harm. The error was described variously in the grounds of appeal as:(1)the Authority applied the incorrect legal test (ground 1); (2)the Authority failed to have regard to the consequences of the Appellant refusing to meet extortion threats (ground 2); and / or (3)the Authority reasoned illogically and irrationally (ground 3). I am not satisfied any of the grounds have been made out. In relation to ground 1, the Authority properly understood the concept of “significant harm” as defined by s 36(2A) of the Act (see [32] of its reasons). Further, albeit briefly, the Authority applied that concept in assessing the prospective risk of harm to the Appellant and engaged in the evaluative judgment required of it, before concluding that the risk of being targeted for extortion did not involve a real risk of significant harm (see [33]-[34] of its reasons). Acknowledging the well understood and limited boundaries of judicial review, I do not consider there to be any error in this reasoning process. Further, in relation to ground 2, I do not accept that the Authority failed to consider the consequences for the Appellant if he refused to comply with the demands of those seeking to extort him. To the contrary, the Authority specifically accepted that the Appellant faced a “low but nevertheless real risk of being targeted for extortion by the MQM” but determined that such a risk would not amount to significant harm within the meaning of Act. That reasoning process necessarily involved consideration of what might occur to the Appellant, both if he acceded to the demands of the MQM or rebuffed them. No error is disclosed in the failure to expressly refer to possible consequences for the Appellant in circumstances where he refused to comply with the demands of those seeking to extort him, particularly where it was not “necessary and foreseeable” that would occur. In relation to ground 3, there is no basis to conclude that the Authority’s reasoning process was illogical or irrational, and in that sense legally unreasonable. The Authority raised the prospect of the Appellant being subject to extortion threats on the contingency that he opened a business in Hyderabad. There was no express finding or conclusion that he would actually do so. However, even accepting that proposition, it was an entirely defensible for the Authority to reach the view that the threats to extort the Appellant did not constitute a real risk of significant harm. That was not a conclusion incapable of being arrived at by a rational and reasonable decision-maker.