FOA18 v Minister for Home Affairs - [2019] FCCA 2204

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOA18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2204

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority not to grant protection visa – whether risk of harm applied to the entire country – generalised claims lacking particulars – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant:

FOA18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

DNG 35 of 2018

Judgment of:

Judge Young

Hearing date:

25 July 2019

Date of Last Submission:

25 July 2019

Delivered at:

Darwin

Delivered on:

25 July 2019

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the First Respondent:

Mr Liveris

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

Mr Liveris

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That the first respondent henceforth be referred to as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application filed 22 October 2018 be dismissed.
The Applicant pay the First Respondent’s costs in the sum of $7,467 including GST.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 35 of 2018

FOA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 10 October 2018 confirming a decision of the Minister’s delegate to refuse the applicant a protection visa. The applicant is a Pakistani citizen who is a member, or at least his family are members, of the Shia sect of Islam. The applicant has said that he does not practise any religion. He is also a member of the Turi subset, or perhaps tribe, of the Pashtun people. He is presently 35 years old.
The applicant was born in Doha in Qatar where his father was employed as an engineer at that time. The claims advanced by the applicant centre on the following events. He said that in 2006, during a period he was resident in Pakistan, he had been kidnapped by persons who he believed were members of the Taliban. He said that he was released after some 29 days because his family paid a ransom.
The applicant said further that between 2007 and 2010, a Shia mosque or Imambargah, was being constructed in his home area in Peshawar and his family were closely associated with the construction of that Imambargah, particularly his brother. He said that as a result of his family’s involvement in the construction of that mosque they received death threats from Sunni extremists.
The applicant said, further, that after he came to Australia in 2013 he heard that that mosque had been the subject of a bombing and some 13 people had been killed. He also said that in 2016 his younger brother had been killed in a car accident and he suspects that that was in reality a sectarian murder carried out because his brother had apparently prayed in a Sunni mosque. He said that if he returns to Pakistan he fears that he will be persecuted or killed at the hands of Sunni Muslims and/or the Taliban because his family is Shia and were involved in the construction of a Shia mosque in Peshawar.
The applicant fears kidnap. He also said that he fears persecution as a returning asylum seeker from Australia. The Authority disbelieved the applicant’s claims in relation to the kidnapping. It found the claims, while detailed, were implausible and did not accept that the kidnapping had taken place.
In relation to the applicant’s claims of death threats directed to his family because of their involvement in the construction of the mosque in Peshawar the Authority concluded that the applicant’s claims of his family involvement were exaggerated. On the basis that there was evidence, evidently from the applicant, that his brother, who had been directly involved, had ceased any involvement at an early point, the Authority did not accept that the applicant would have been seen to have played a notable part in the construction of that mosque. The Authority also concluded that the applicant’s claims about the reason for the death of his younger brother were nothing more than speculative and there was no evidence to support the claims.
Generally, the Authority considered the applicant’s claims based on his Shia religion, his Turi ethnicity, his membership of the Pashtun group and also as a returning asylum seeker. The Authority noted that there were a history of sectarian attacks against Shia people in Pakistan and that those attacks were continuing. The Authority, however, concluded that while the applicant was at real risk of harm should he remain living in one of his home areas, that is, Parachinar, should he relocate to Islamabad, where he had apparently lived and worked for some period, then there was no real risk of harm to the applicant.
The Authority concluded that on the basis there had been no reports of deaths as a result of sectarian attacks in Islamabad since 2015 and on the basis of section 5J(1) of the Migration Act1958, having regard to the requirement that an applicant for a protection visa was only entitled to such a visa, that Australia was only obliged to provide protection if the real risk of persecution related to all parts of the receiving country. It concluded that the applicant was not at real chance of persecution should he relocate to Islamabad and that that was reasonable.
The applicant’s application is, as I have mentioned, expressed in most general terms and simply says that ‘the Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making this decision’. Ignoring the reference to the delegate, the claim is a generalised claim, lacking any particulars of legal error by the Authority. As the Minister points out, a generalised claim of that nature does not constitute a proper ground for review and that in itself provides a basis for dismissing the application.
The Minister goes on to say, however, that having regard to the general obligation of the Minister as a model litigant, counsel for the Minister has examined the reasons given by the Authority and is not able to identify any error or possible error. I should say that I have also read the Authority’s decision and there is no error evident to me in the decision-making process adopted by the Authority.
The Authority’s conclusions, in my view, were open to it, in particular that its adverse credibility finding about the applicant in relation to his claims of kidnap. Likewise, the Authority’s conclusion that, while there have been sectarian attacks on Shia in Pakistan and a long history of attacks which may well continue, particularly in certain regions of Pakistan, such as Parachinar where the applicant has at some point, at least, resided, though he has resided in other places in Pakistan, that it was reasonable for the applicant to relocate to Islamabad where there was no real chance of persecution and, in particular, of violent sectarian attack based on his Shia religion.
The other aspects considered by the Authority, that is the applicant’s Turi ethnicity or, at least, Pashtun ethnicity, the Turi being a subset of the Pashtun, in my view, were also open to it and, similarly, any claims relating to the applicant as a returning asylum seeker.
I am not satisfied that there has been any error demonstrated by the Authority and the application will be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 13 August 2019