FAB17 v Minister for Immigration
[2018] FCCA 2933
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAB17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2933 |
| Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – unauthorised maritime arrival – whether failure to properly consider all claims – whether opportunity to comment on claims – whether right to legal representation – whether impermissible merits review – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), Pt.7AA, Div.3, ss.5H, 5J, 36, 46A, 422B, 424A, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473GA, 473GB, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) |
| Cases cited: 1410882 (Refugee) [2016] AATA 4267 AMF15 v Minister for Immigration & Border Protection & Ors [2016] FCAFC 68; (2016) 241 FCR 30 |
| Applicant: | FAB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 617 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 March 2018 |
| Date of Last Submission: | 28 March 2018 |
| Delivered at: | Perth |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms L Helsdon (by telephone from Brisbane) |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 617 of 2017
| FAB17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, by way of an application filed on 15 November 2017 seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) made on 1 November 2017. The IAA Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Temporary Protection visa (“TP Visa”). The IAA Decision appears at Court Book (“CB”) 156-172.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Pakistan who arrived in Australia on 19 November 2012 as an unauthorised maritime arrival: CB 96;
b)on 18 April 2016 the Minister exercised his power to “lift the bar” pursuant to s.46A(1) of the Migration Act to permit the applicant to apply for the TP Visa: CB 1-2;
c)on 6 September 2016 the applicant lodged the TP Visa application making the following claims for protection:
i)he is of Pashtun ethnicity, a member of the Turi tribe, and a Shia Muslim, and the main reason for seeking the protection of Australia is fear of harm at the hands of the Taliban on account of his Shia Muslim religion: CB 42;
ii)the Taliban were attacking the Turi tribe in Kurram Agency in Pakistan, and in around November 2008, despite not fighting against the Taliban, possessing no weapons in his house, and his family possessing no weapons, an explosive missile fired by the Taliban struck and destroyed the roof of the applicant’s house in a village in the Kurram Agency, Pakistan when his mother, brothers, wife and he were all in the house, though no one was hurt (“November 2008 Incident”): CB 42;
iii)he left Pakistan due to the November 2008 Incident and in fear that the Taliban would attack him and his family due to their Shia religion, and also due to his inability to obtain further education by travelling inside Pakistan as he needed to go to other cities to obtain further education, but was unable to do so because of the danger of being recognised and attacked by the Taliban on the road: CB 42;
iv)there is also no police force in the area where he lived, and in approximately 2006, his father received a head injury when a bomb that was planted by the Taliban exploded in his area, and he is thus unable to rely on the Pakistani government for protection from the Taliban, because the government is weak and cannot protect him, and while he has demanded the government and army of Pakistan to provide safety and security they do not listen: CB 43; and
v)it is possible that he will be killed or disabled by the Taliban due to his Shia religion, he will not be safe travelling in Pakistan, and he is unable to relocate to another area of Pakistan because his risk of harm extends throughout the whole country, and it is unsafe for Shia people who, on the basis of their Shia religion, are being targeted all over Pakistan including abduction, physical assault and murder at the hands of the Taliban: CB 43;
d)on 27 January 2017, the applicant attended an interview with the Delegate to discuss his TP Visa application, and he also gave to the Delegate a number of news articles from online sources referring to violence against Shia Muslims in Pakistan, variously dated from May 2015 to January 2017 and a number of supporting identity documents: CB 71-92;
e)on 10 February 2017 the Delegate’s Decision was to refuse the applicant a TP Visa: CB 93-107;
f)on 15 February 2017 the Delegate’s Decision was referred to the IAA for review, and on 23 February 2017 the applicant’s migration agent contacted the IAA requesting to be provided with a copy of the TP Visa application and the audio recording of the applicant’s interview with the Delegate: CB 108-110;
g)on 8 March 2017 the applicant’s migration agent again contacted the IAA and requested the documents as a matter of urgency in light of the 21 day time limit to provide any submissions to the IAA: CB 114;
h)the IAA provided the documents on 9 March 2017: CB 114, and on 24 March 2017 and again on 4 April 2017 the applicant’s migration agent provided written submissions to the IAA (“Applicant’s IAA Submissions”), including annexing a copy of the decision of the Administrative Appeals Tribunal (“AAT”) in 1410882 (Refugee) [2016] AATA 4267 (“1410882”): CB 119-152; and
i)on 1 November 2017 the IAA Decision affirmed the Delegate’s Decision not to grant the applicant a TP Visa: CB 155-172.
IAA Decision
In the IAA Decision, the IAA:
a)confirmed it had regard to the material given to it by the Secretary of the Department under s.473CB of the Migration Act: CB 157 at [2];
b)considered the Applicant’s IAA Submissions provided information which was not before the Delegate, and so amounted to “new information” that the IAA had to be satisfied, pursuant to s.473DD of the Migration Act, was credible personal information which was not previously known and which, had it been known, may have affected the consideration of the applicant's claims: CB 157 at [3];
c)said that the applicant argued to justify the consideration of this new information, submitting that the IAA should exercise its discretion to obtain this new information and that there were exceptional circumstances, being that the Delegate addressed only the applicant's claim to fear harm for reason of being a Shia Muslim and failed to take into account any country information addressing the treatment of members of the Turi tribe: CB 157 at [3];
d)found that while the Delegate articulated its findings in terms of the applicant's explicit claim to fear harm on the basis of his Shia Muslim religion, the country information to which the Delegate had regard provided ample information on the situation for the Turi tribe, and much of this was sourced from reporting from the same, or similar, sources to those relied upon by the AAT in 1410882, and it included the various English language news reports which the applicant himself had supplied to the Delegate in support of his application, and that the applicant, who demonstrated a good command of the English language at his TP Visa interview, had been repeatedly advised of the need to provide all evidence in support of his claims: CB 157 at [3];
e)in light of the above the IAA was not satisfied that there were exceptional circumstances to justify considering 1410882: CB 157 at [3];
f)in any event 1410882 was published well before the date of the Delegate's Decision and does not contain any information personal to the applicant, so the IAA was not satisfied that either s.473DD(b)(i) or s.473DD(b)(ii) of the Migration Act were met with regard to 1410882: CB 157 at [3];
g)found that the January 2016 “DFAT Country Information Report: Pakistan” (“2016 Country Report”) that was stated as being before the Delegate, and was quoted at footnote 4 of the Delegate's Decision, was not before the Delegate, and the Delegate did not have regard to the 2016 Country Report, and referred instead to the January 2016 “DFAT Thematic Report: Shias in Pakistan” (“2016 Thematic Report”). Thus, the 2016 Country Report is new information;
h)found that s.473DD(b) of the Migration Act was not met with regard to the 2016 Country Report, and given that:
i)the 2016 Country Report was published before the date of the Delegate's Decision and provides no personal information about the applicant; and
ii)the 2016 Thematic Report was before the Delegate and dealt specifically with the situation in Pakistan for Shia Muslims,
the IAA was not satisfied that there were exceptional circumstances to justify considering the 2016 Country Report: CB 157-158 at [4];
i)referred to a number of other pieces of new information provided by the applicant including:
i)a RRT Country Advice report;
ii)various information on housing in Pakistan, and the average price of housing in Islamabad and Lahore,
but again found no reasons were provided to satisfy the IAA that s.473DD(b) of the Migration Act was met, and while the relevant footnote details for some of this new information indicates that it was "accessed" after the date of the Delegate's Decision, no information was provided by the applicant to satisfy the IAA that this information could not have been accessed and provided before the date of the Delegate's Decision, and the footnotes to the remainder of the new information on these matters either provide no publication date details or show that this information was plainly published, and was thus available and could have been provided, well before the date of the Delegate's Decision, therefore the applicant had not satisfied s.473DD(b) of the Migration Act and, further, given that the information provides only very general information, the IAA was not satisfied that there were exceptional circumstances to justify considering this information: CB 158 at [5];
j)a 31 March 2017 New York Times report (“New York Times Report”) on a bomb attack which had been perpetrated in the Kurram Agency district centre of Parachinar was provided and considered as new information given that it was published after the date of the Delegate's Decision, and the IAA was satisfied that s.473DD(b)(i) of the Migration Act was met and that the report provided information on the developing situation for Turi Shia Muslims in Pakistan, and there were therefore exceptional circumstances to justify considering the New York Times Report: CB 158 at [6]; and
k)obtained new information on the situation in Pakistan for Turi Shia Muslims, and also for Pakistan nationals who have lived in western countries, sourced from DFAT's new “DFAT Country Information Report: Pakistan” published on 1 September 2017 (“2017 Country Report”), and given that the 2017 Country Report was not available to the Delegate, that it again provided updated information on the developing situation for Turi Shia Muslims in Pakistan, and the IAA was satisfied that there were exceptional circumstances to justify considering this new information: CB 158 at [7].
When assessing the applicant’s claims, the IAA:
a)identified the legislative provisions of the Migration Act to which it must have regard when assessing the applicant’s claims under the refugee criterion and the complementary protection criterion: CB 159 at [9]-[10], 166-167 at [28]-[29] and 169-172;
b)accepted that the applicant was not in possession of his passport, was a national of Pakistan, a Shia Muslim and an ethnic Pashtun of the Turi tribe who originated from a particular village in the Kurram Agency: CB 160 at [12];
c)having regard to country information in relation to Kurram Agency, was prepared to accept that the applicant’s father was injured in a bomb attack in around 2007 or 2008 and that his family home was damaged in an attack: CB160- 161 at [13]-[16];
d)found, having regard to further country information and the applicant’s particular circumstances, that the applicant would have no need to visit Parachinar city for his studies, nor that he would have to take up employment in Parachinar city in order to earn a livelihood, but accepts that, for the foreseeable future, the applicant would face a small, but nonetheless real, chance of being killed or seriously injured by reason of being a Shia Muslim if he were to return to his home area in the Upper Kurram Agency: CB 162-163 at [17]-[20];
e)proceeded to consider whether the applicant had a well-founded fear of persecution in all areas of Pakistan, and having regard to country information, as well as the applicant’s claims and particular circumstances, found that whilst he would be identifiable as a Shia Muslim and as a Pashtun Turi Shia Muslim from the Upper Kuram Agency, the evidence indicated that low profile Shia Muslims like the applicant, who is not a community leader, and plainly a low profile figure who has never been of any specific interest to a group like LeJ or the Taliban as an individual, would not face a real chance of any harm from Sunni militant groups, and the evidence did not indicate that having spent time in, or having sought asylum in, a western country would place him at a greater risk of harm: CB 163 at [21]-[26];
f)was not satisfied that the applicant would face a real chance of harm of any kind in Islamabad by reason of being a Shia Muslim, a Pashtun Turi Shia Muslim from the Upper Kurram Agency, his actual or imputed political opinion of being opposed to Sunni militant groups, having sought asylum in a western country, or as a consequence of more generalised violence arising from terrorist attacks or criminality: CB 166 at [26]; and
g)having regard to its earlier findings, accepted that the applicant faced a real risk of significant harm in his particular area in the Upper Kurram Agency: B 167 at [30], but that he would not face a real risk of harm of any kind in Islamabad, and having regard to the applicant’s overall circumstances, his foreseeable livelihood and the security situation in Islamabad, found that it would be reasonable for the applicant to relocate to, and reside in, Islamabad: CB 167-168 at [33]-[35].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The Assessor failed to consider properly all of my claims;
2. The Assessor didn’t give me a chance to comment on one aspect of my claims.
(Grounds 1 and 2 respectively).
The applicant also filed an affidavit at the same time as the Judicial Review Application was filed. That affidavit did no more than annex a copy of the IAA Decision.
On 15 December 2017 a Registrar of the Court made orders (“Registrar’s Orders”) which provided the opportunity for the applicant to file and serve any amended Judicial Review Application “giving complete particulars of each ground of review,” additional supporting affidavits and to file written submissions prior to a hearing listed on 28 March 2018. The applicant did not take the opportunity to file and serve any materials pursuant to the Registrar’s Orders. Notwithstanding that the applicant did not do so, when the matter came on for hearing the applicant was provided an opportunity to make oral submissions in support of his Judicial Review Application. The applicant submitted as follows:
a)he wished to have a “representative” and “to seek legal advice”;
b)that “friends” who had arrived with him from the same village had had their visas granted and their “cases are almost the same” and, therefore, he does not understand why his TP Visa has been refused;
c)that the IAA mentioned that he did not provide his “National ID”; and
d)in relation to relocation in Islamabad he will face exactly the same issues in relation to security, the language barrier and his appearance as a Shia Muslim: Transcript at page 3.
In accordance with the Registrar’s Orders the Minister filed written submissions to which the Court has had regard in considering the grounds of the Judicial Review Application. The Minister also made oral submissions in response to the applicant’s oral submissions, as follows:
a)the applicant indicates a disagreement with the IAA Decision rather than pointing to any particular error of law;
b)the issue with respect to the applicant’s identity documents is irrelevant as the IAA accepted that the applicant was a national of Pakistan who was no longer in possession of his passport; and
c)the IAA considered relocation and the security, language and identification issues referred to by the applicant: Transcript at page 4.
Consideration
Jurisdictional Error Required
The IAA Decision is liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IAA will constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The IAA Decision may also be tainted by jurisdictional error where there is a denial of procedural fairness as expressly required by the terms of the Migration Act (in this case Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB): SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, or if the IAA Decision is affected by legal unreasonableness: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50, and see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
This Court does not have the jurisdiction to review the merits of the IAA Decision, or determine the applicant’s claim for the TP Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”) CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is well established that mere disagreement with the findings or the decision of an administrative decision-maker, such as the IAA, does not amount to jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J; Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J.
Grounds Generally
The grounds of the Judicial Review Application lack particulars. It is now well accepted by both this Court and the Federal Court that a failure to particularise grounds of review in an application for judicial review can result in the dismissal of a ground or grounds, and if the want of particularisation affects all grounds, the application for judicial review may fail completely: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; BYM16 v Minister for Immigration & Border Protection [2018] FCA 326 at [12]-[13] per Bromwich J, applying WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J.
Given the applicant is a litigant in person, and recognising its duty to strike a “balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties”: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 (“AMF15”) at [39] per Flick, Griffiths and Perry JJ; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (“MZAIB”), the Court must remain astute to any possible jurisdictional error in the IAA Decision, or which might be raised by the applicant’s oral submissions, and in this case it is, therefore, necessary to consider each of the applicant’s Grounds of review and not merely dismiss those Grounds for want of particularisation.
Ground 1
The IAA will fall into error where it fails to consider an applicant’s claims to meet the criteria for the TP Visa and its component integers, which are considerations mandatorily relevant under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. The IAA was aware of the criteria the applicant was required to meet: it referred to and set out s.36(2)(a) and (aa) of the Migration Act: CB 166 at [27], 168 at [36] and 171; it explained in the IAA Decision what was required under s.5J of the Migration Act and set out the components of a “well-founded fear of persecution”: CB 159 at [10], 163-164 at [21] and 170, and referred to and set out the definition of “refugee” in s.5H of the Migration Act: CB 159 at [9] and 169. Additionally, the IAA referred to the real risk of significant harm, for the purposes of s.36(2A) and (2B) of the Migration Act, and the absence of a real risk of significant harm where it is reasonable for a non-citizen to relocate to another area of their country: CB 166-167 at [29] and 167 at [31]. It is not enough for the IAA to simply adopt the findings of the Delegate, rather the IAA must engage in an active intellectual process directed at that claim or criteria: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 (“Carrascalao”) at [45]-[46] per Griffiths, White and Bromwich JJ, affirming Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [47]-[54] per Lindgren, Rares and Foster JJ, though when doing so the Court must bear in mind that:
a)the obligation is not to do so overzealously: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
b)it is the applicant who bears the onus of proof to establish jurisdictional error: Carrascalao at [47] per Griffiths, White and Bromwich JJ.
The written submissions of the applicant’s migration agent to the IAA made reference to the additional claims raised by the applicant at his TP Visa interview with the Delegate, and which the migration agent requested, at CB 121-122, the IAA conduct an assessment of, namely:
a. whether there is a real risk the Applicant will face significant harm in and around his home area of Parachinar: s 36(2)(aa) of the Act; and
b. whether it would be reasonable for the Applicant to relocate to a region in Pakistan where, objectively, there is no appreciable risk of the occurrence of the feared significant harm: s 36(2B)(a) of the Act.
The IAA summarised the applicant’s claims at CB 158-159 at [8]:
He is a national of Pakistan, a Shia Muslim and an ethnic Pashtun of the Turi tribe who originates from … [name deleted] village in Kurram Agency.
The Taliban were attacking the Turi tribe in Kurram Agency and as a consequence of these attacks his father suffered head injuries from a 2006 bomb attack in Parachinar and was hospitalised for several days. In 2008 the applicant's family home was seriously damaged by a missile. The applicant departed Pakistan as a consequence of this incident and because of his inability to obtain further education. To pursue further education he would have needed to go to other cities but he was unable to do so because of the danger of being recognised and attacked by the Taliban on the road.
Shia people are targeted all over Pakistan and he fears that wherever he might go in Pakistan he would be at risk of abduction, physical assault and murder at the hands of the Taliban and/or Lashkar-e-Jhangvi (LeJ) for reason of being a Shia Muslim.
The Court observes as follows:
a)the IAA’s summary of the applicant’s claims (see above at [16]) reflects the substance of the claims articulated in the Statutory Declaration made by the applicant in support of his TP Visa application and encompasses the additional claims the IAA was on notice to address by the applicant’s migration agent;
b)the IAA at CB 147 at [12] found that:
… the applicant is a national of Pakistan and a Shia Muslim and an ethnic Pashtun of the Turi tribe who originates from … [name deleted] village in Kurram Agency;
c)the IAA summarised the claims, express or implicit, it had regard to when making its assessment at CB 166 at [28]:
I am not satisfied that for the reasonably foreseeable future the applicant would, in Islamabad, face a real chance of harm of any kind for reason of being a Shia Muslim, and/or for reason of being a Pashtun Turi Shia Muslim from Upper Kurram, and/or his actual or imputed political opinion of being opposed to Sunni militant groups such as the Taliban and LeJ, and/or his having spent time, or having sought asylum, in a western country like Australia, and/or as a consequence of more generalised violence arising from terrorist attacks and/or criminality, from Sunni militant groups such as LeJ, the TTP, JuA, the Taliban (including the Haqqani Network), from kidnappers, or from any other actors;
d)when considering the applicant’s claims as a Shia Muslim, a member of the Turi Tribe and in relation to his area of residence, the IAA at CB 160 at [13] and 163 at [19] referred to country information expansively before making any assessments:
13…The majority of the Shia population in the FATA is concentrated in Kurram and Orakzai Agencies, and Shias account for around 40 percent of Kurram's estimated 935,000 inhabitants, with Upper Kurram being predominantly Shia (approximately 80 per cent), while Central and Lower Kurram are majority Sunni. Upper Kurram is sometimes also referred to by the name of the city which is its administrative centre, Parachinar. Most of Upper Kurram's Shia Muslims belong to the Turi tribe, an exclusively Shia Pashtun tribe comprising approximately 500,000 people dispersed throughout Pakistan…
19… In September 2017 DFAT assessed that Shia Muslims in the FATA typically face a low risk of sectarian violence overall, in the context of a moderate level of militant and criminal violence across the region, but that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the FATA. Prior to the attack in January 2017, Parachinar had experienced relative calm. However, the three large scale attacks which have targeted Shia Muslims in Parachinar in the first six months of 2017 have killed more than 120 people and injured hundreds more, reflecting the ongoing risks faced by Shia Muslims in Parachinar…
e)when considering the claims raised regarding sectarian attacks on his family the IAA at CB 160-161 at [16] and 163 at [20] noted the country information, and specifically accepted the applicant had a real chance of suffering harm in the Kurram Agency area:
16…On the information before me there were no bomb attacks in Parachinar in 2006, although as noted above the city did see sectarian violence from April 2007. Given this, I am prepared to accept that the applicant's father was injured in an attack of this kind in around 2007 or 2008. The applicant claims that in around 2008 his family's home in … [name deleted] village was seriously damaged by a missile, with missiles also damaging other homes in the village, and the applicant suspecting that the these missiles were fired by the Taliban. As has been noted above, during 2008 and over subsequent years the Turi and Bangash Shia Muslim villages along Upper Kurram's border areas were sometimes subjected to attack and it was suspected that many of these were perpetrated by the Taliban affiliated Haqqani Network which was attempting to pressure Upper Kurram's Shia Muslim community into acquiescing to the Haqqani Network's use of border crossing points into Afghanistan. The applicant's village of … [name deleted] is situated in proximity to a crossing point of this kind and I accept that the applicant's family's home was damaged in an attack of this kind…
20… Even so, given that … [name deleted] village is a Shia Muslim village along Upper Kurram's border with Afghanistan, and given the recent escalation of sectarian violence in the form of attacks on Parachinar in 2017, and given that militants have proven willing and able to make use of artillery to attack targets in Kurram's border areas, I accept that for the foreseeable future the applicant would face a small, but nonetheless real, chance of being killed or seriously injured for reason of being a Shia Muslim if he were to return to reside in his home area of … [name deleted] in Upper Kurram.
f)when considering the applicant’s wish to undertake further study the IAA noted, in relation to Parichinar, where much of the violence was focussed, at CB 163 at [20]:
The applicant was studying in Parachinar but he has now completed all the studies he wishes to take that are available in Kurram, and would have no need to visit Parachinar city on this basis.
g)when considering the chance of harm and risk of persecution if the applicant relocated the IAA stated at CB 165-166 at [23]-[25]:
23. In January 2016 DFAT reported that the Turi community in Islamabad had informed DFAT that there had been only been one attack on Turi migrants in Islamabad in the past four years. The incident in question occurred on 10 August 2013 when there was an attempted suicide IED attack on a Shia imambargah in the Turi populated Islamabad neighbourhood of Bahra Kahu…
24. Islamabad has also seen occasional targeted attacks by suicide bombers or gunmen against leading figures in the Islamabad Shia community such as politicians, clerics and high profile professionals, or who have been involved in security matters or other sensitive positions, but not to the significant degree that has been the case in some other parts of Pakistan…
25. The applicant claims that he would be identifiable in Islamabad as a Shia Muslim. The applicant's claims regarding the significance of the length of his beard seem doubtful. However, given that if the applicant were to reside in Islamabad he would likely take up residence in a suburb populated by Turi Shia Muslims from Upper Kurram, and given that Turi and Bangash accents are reportedly easily distinguishable from other Pashtun groups, and given he has a distinctively Shia Muslim name and would likely participate in communal Shia Muslim worship, I accept that the applicant would be plainly identifiable as a Shia Muslim, and as a Pashtun Turi Shia Muslim from Upper Kurram. However, on the evidence, low profile Shia Muslims, including low profile Pashtun Turi Shia Muslims who have migrated from Upper Kurram, and who would likewise be identifiable as such, are able to engage in public worship and to go about their day-to-day activities in Islamabad such as work and education, without facing a real chance of harm of any kind from Sunni militant groups such as LeJ, the TTP, JuA, the Taliban (including the Haqqani Network), from kidnappers, or from any other actors. The applicant is personally opposed to such Sunni militant groups such as the Taliban and LeJ…
h)the IAA, while not obliged to do so following the removal of the “reasonableness” requirement of s.5J(1)(c) of the Migration Act in 2014, considered the reasonableness of the applicant relocating to Islamabad, including:
i)the applicant’s ability to establish networks with other Turi Shia Muslims;
ii)that employment, education and health care opportunities increased in Islamabad;
iii)that many migrant Shia groups such as Turi Shias in Islamabad often own or work for small businesses;
iv)that in Islamabad working class areas populated by Turi Shias rents range from AUD135-270 per month (for 1-2 rooms) to AUD685 per month (for a house); and
v)that members of the community often share accommodation to alleviate the costs, which are further offset by the higher wages paid in large urban centres: CB 168 at [33].
The IAA has, on the face of all of the evidence before the Court, considered each of the applicant’s claims. The Court notes the IAA referred to the submissions of the migration agent having been forwarded on 24 March 2017 and 4 April 2017. Both submissions were clearly outside of the 21 day time-frame the applicant was provided to forward any written submissions to the IAA, but the IAA nonetheless addressed the migration agent’s submissions having regard to the papers and materials before it insofar as it was able or appropriate to do so: Migration Act, ss.473DB and 473DF.
In relation to ground 1 a review of the IAA’s Decision shows that it properly engaged with the applicant’s claims and the material, including the new information before it, within the bounds of ss.473CC and 473DB(1) of the Migration Act, and that the findings the IAA made on the applicant’s claims were open to it on the material before it. In the Court’s view the IAA has not failed to properly consider any of the applicant’s claims, but rather has engaged in an active and intellectual process with each of the applicant’s claims that have arisen on the material before it: Carrascalao at [45]-[46] per Griffiths, White and Bromwich JJ. The Court finds no jurisdictional error is established by Ground 1.
Ground 2
The statutory provisions directing the IAA with regard to its obligations of procedural fairness are those in Pt.7AA, Div.3 of the Migration Act. In particular s.473DB of the Migration Act directs that the IAA is to review the decision on the papers, without accepting or requesting new information and without interviewing the applicant. Of note, when referring to the purpose of ss.473DA and 473DB of the Migration Act, the former being the equivalent of s.422B of the Migration Act referring to the “exhaustive statement of the natural justice” hearing rule, the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [878] and [893] notes:
…[t]he purpose of this provision [s 473DA] is to put beyond doubt that the IAA is not required to give a referred applicant any material that was not before the Minister for comment…".
The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity. As such, the IAA's primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information in a case involving a fast track review applicant. A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application.
Section 473DE(1) of the Migration Act does not oblige the IAA to invite an applicant to give comments on “new information”, rather it requires the IAA to give particulars of any “new information”, as defined in s.473DC(1) of the Migration Act only if the new information has or is to be considered by the IAA under s.473DD of the Migration Act, and would be the reason, or part of the reason, for affirming the fast track reviewable decision: Minister for Immigration & Border Protection v DZU16 [2018] FCAFC 32 at [76] per Robertson, Murphy and Kerr JJ. The “new information” accepted by the IAA did not engage s.473DE of the Migration Act, because, being country information, it was not specifically about the referred applicant, and the exception in s.473DE(3)(a) of the Migration Act applied. The IAA was otherwise required to conduct the review under Part 7AA of the Migration Act by reference to the material referred to it under s.473CB of the Migration Act, without accepting or requesting new information and without interviewing the referred applicant: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [72]-[78] per Reeves, Robertson and Rangiah JJ.
The applicant was provided an opportunity to comment on any aspect of his claims when the IAA acknowledged the referral it had received from the Minister on 15 February 2017. Attached to that document was the IAA’s Practice Direction for Applicants, Representatives and Authorised Recipients explaining to the applicant he would not be invited to an interview, and if he wished to provide any further information or comment he was required to do so within 21 days. The applicant’s migration agent, outside of this time limit, commented on the information before the Delegate and provided new information to the IAA to consider. The IAA dealt with each piece of new information provided by the applicant’s migration agent and assessed whether it could have regard to that information having regard to the conditions in s.473DD of the Migration Act: CB 157-158 at [3]-[7].
In keeping with the statutory obligations in Part 7AA of the Migration Act generally, and s.473DB of the Migration Act in particular, which establishes a limited form of review, the IAA was not obliged to offer the applicant an opportunity to comment on any aspect of his claims. The IAA was only obliged to invite the applicant to comment on new information not previously before the Delegate, if that information satisfied the conditions in s.473DD of the Migration Act, thereby enabling the IAA to consider the information, and further if that information would be the reason, or part of the reason, the IAA would affirm the Delegate’s Decision: Migration Act, s.473DE(1)(a). In such circumstances the IAA has a statutory obligation to invite the applicant to comment, but otherwise is not obliged to do so.
The first material the IAA did consider to be new information was the New York Times Report published subsequent to the Delegate’s Decision, and which provided information on the developing situation for Turi Shia Muslims. The applicant’s migration agent provided the New York Times Report to the IAA, and also made a lengthy comment and submission on it, submitting that:
The Applicant now provides new country of origin information which is more current and more accurate… The Department of Immigration and Border Protection's (Department) Procedures Advice Manual (PAM3) advises that 'when selecting and weighing [country of origin information], decision makers must evaluate it against' an 'evaluation criteria' which includes assessing the currency of the information. PAM3 advises decision makers to…
The Applicant requests that the IAA take into account events that have occurred in his home area since the Delegate's decision - specifically, the car bomb attack in Parachinar which killed at least 22 and injured at least 90 others
5. Evidence suggests that this attack on the Shia community in Parachinar is not simply a religiously motivated attack. This attack was carried out in an area known to be dominated by the Shia Turi Tribe - a tribe which has long protested the advancement of Sunni extremist groups such as the Taliban and Jamaat-ul Ahrar. In a political sense, the Turi Tribe has positioned itself as vocally against Sunni extremist groups. As such, this attack in Parachinar has the hallmarks of not only a religiously motivated attack but it also has a very specific political, ethnic, cultural and tribal dimension.
The Court finds that the New York Times Report was not new information which would be the reason, or part of the reason, for affirming the Delegate’s Decision. This is because the IAA rejected the Delegate’s finding the applicant faced no real chance of suffering significant harm if he returned to his village: CB 102. The new information merely went toward satisfying the IAA that the applicant faced a real chance of harm in the Kurram Agency, but notwithstanding the finding that the applicant faced harm if he returned to his village, the IAA was required to further consider s.5J(1)(c) of the Migration Act, and whether the real chance of harm extended to the entire country. It was on this latter point, that is whether the real chance of harm extended to the entire country, that the IAA Decision rested, and, therefore, the New York Times Report did not go to that point, its focus being restricted to attacks in Parachinar. The applicant’s own migration agent also sought to have the New York Times Report characterised as “country of origin information”. It has been held with respect to s.424A(3)(a) of the Migration Act, the equivalent of s.473DE(3)(a) of the Migration Act, that what is referred to as country information ordinarily falls within the exclusion as:
It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act:
VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; [2003] FCAFC 186 at [50] per Kenny J (“VHAJ”). Therefore, the New York Times Report need not have been put to the applicant for comment as the necessity to do so was obviated by s.473DE(3)(a) of the Migration Act.
The further material that the IAA treated as new information was the 2017 DFAT Country Report. As with the New York Times Report, the 2017 Country Report need not have been provided to the applicant for comment: VHAJ at [50] per Kenny J. It is well established that where country information is “not specifically about the applicant or another person” it need not be put to an applicant: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [64]-[74] per Beaumont J and [112]-[138] per Merkel and Hely JJ.
It follows from the above that no jurisdictional error is established by Ground 2.
Oral Submissions
To the extent the applicant sought to have the proceedings adjourned to enable him to seek legal advice or have a representative the Court notes, as it did on the day of hearing, that it is well accepted there is no right to legal representation in migration proceedings in this Court: AMF15 at [51] per Flick, Griffiths and Perry JJ; Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [20]-[21] per Judge Lucev. It is not a requirement of procedural fairness for an applicant to have publically funded legal representation, nor is it a reasonable ground for an application or proceeding to be stayed because an applicant does not have such representation: AMF15 at [51] per Flick, Griffiths and Perry JJ. In Timu v Minister for Immigration & Border Protection [2018] FCA 214 (“Timu”) at [67] per Barker J the Federal Court stated:
While the applicant suggests that if he were to be granted an adjournment and obtained legal advice and representation, a lawyer might discover further grounds of review in order to found a jurisdictional error, that speculative approach to the grant of an adjournment is not appropriately adopted. A court will often grant an adjournment, in the interests of justice, where there is no prejudice to any party of any great note, where there appears to be some reason to think that there may be proper grounds to be identified in advancing a case. Here, the submission for an adjournment of the applicant simply amounts to a request for further time to see if he can find a lawyer in the hope and eventuality that some further ground or grounds for setting aside the Assistant Minister's decision can be articulated.
In this case the applicant has no present legal representation, and there is no assurance that any legal representative will in fact come onto the record, and the applicant does not know what jurisdictional error, if any, might affect the IAA Decision. The Court, having read the IAA Decision and the other relevant papers, examined the Grounds of the Judicial Review Application, and endeavouring to remain vigilant to any possible jurisdictional error which might arise on the face of the IAA Decision: MZAIB at [100] and [112] per Mortimer J, does not consider that it is sufficiently arguable that the IAA Decision is affected by jurisdictional error, or that there is “some reason to think that there may be proper grounds to be identified in advancing a case”: Timu at [67] per Barker J, so as to warrant any adjournment of the hearing. The Court notes that an appeal from Timu, which included a ground of appeal related to the failure to afford Mr Timu an adjournment at first instance, has since been dismissed: Timu v Minister for Immigration & Border Protection [2018] FCAFC 161, in particular at [20] per McKerracher, Farrell and Banks-Smith JJ.
Further, the Court observes with respect to legal representation that:
a)before the IAA the applicant had the benefit of the assistance of a migration agent who was also a lawyer, and one experienced in representing applicants in migration proceedings in this Court, and there is no explanation as to why that lawyer no longer continues to act for the applicant (who was afforded the opportunity to file affidavit evidence pursuant to the Registrar’s Orders); and
b)there is no explanation by the applicant as to what, if any, steps he took to obtain legal representation following the handing down of the IAA Decision on 1 November 2017, and the making of the Judicial Review Application on 15 November 2017. It suffices to observe that if the applicant wanted to seek legal advice and legal representation prior to the hearing on 28 March 2018 (a hearing listed on 15 December 2017 pursuant to the Registrar’s Orders) then the applicant (who is not in an immigration detention facility) had adequate opportunity to do so.
In relation to the other matters referred to by the applicant in oral submissions:
a)the fact that other applicants from his village may have been granted visas does not establish jurisdictional error in the IAA Decision, and, in any event, there is no evidence before the Court of the grant of any such visa (the applicant having been afforded the opportunity to file affidavit evidence pursuant to the Registrar’s Orders);
b)the issue with respect to the non-provision of identification documents by the applicant is irrelevant, as the IAA Decision recognises that the applicant is a Pakistani national, and accepts that he was no longer in possession of his national identification documents, and does not draw any adverse inference, or make any finding adverse to, the applicant in relation to the identification documents: CB 160 at [12]; and
c)as to the issues in respect of relocation, and in particular security, language and identification as a Shia Muslim, those were all matters considered by the IAA in making the IAA Decision: see, for example, CB 167-168 at [31]-[35].
Ultimately, save for the submission with respect to legal representation, the applicant’s oral submissions did no more than express disagreement with the findings, and ultimately, the outcome of the IAA Decision and, therefore, invited the Court to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusion and Orders
The Court has concluded that the IAA Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 October 2018
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