Fre17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 26
•18 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 26
File number(s): MLG 2811 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 18 January 2024 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (Subclass 790) visa – whether the Authority was legally unreasonable to consider “new information” in the form of changed country information without exercising its discretion to invite applicant’s response – whether finding as to chance of harm from sectarian or generalised violence was irrational or the Authority otherwise misunderstood the statutory thresholds – whether the Authority misapprehended its task on review or was irrational in relying on an omission at arrival interview to make an adverse finding of credit – where no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 Act (Cth) ss.5H, 36, 65, 473DA, 473DB, 473DC, 473DD, 473DF, 473EA, 474, 476 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
AYJ17 v Minister for Immigration & Anor [2018] FCCA 2227
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169
Craig v South Australia (1995) 184 CLR 163
DAO16v Minister for Immigration and Border Protection [2018] FCAFC 2
DPV18 v Minister for Home Affairs & Anor [2019] FCCA 2762
DQU16v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1
DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222
EMQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 947
FGC17 v Minister for Home Affairs [2019] FCA 559
Minister for Home Affairs v AYJ17 [2019] FCA 591
Minister for Immigration and Border Protection vCRY16 [2017] FCAFC 210
Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 2017
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of last submission/s: 30 August 2023 Date of hearing: 4 September 2023 Place: Melbourne Counsel for the Applicant: Mr McBeth Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2811 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
18 JANUARY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application as amended on 9 September 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a male citizen of Pakistan of Punjab ethnicity and a Sunni Muslim, who sought a protection visa on the basis of claims to fear harm on return.
The Applicant now seeks judicial review of a decision to affirm an administrative decision to refuse him a protection visa.
For the reasons that follow, the application must be dismissed with costs.
CONTEXT
Application for a protection visa
In 2013, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 14 June 2013, the Applicant participated in an “Irregular Maritime Arrival & Induction Interview”.
On 4 July 2016, the Applicant applied for a Safe Haven Enterprise (Class XE) (subclass 790) (SHE) Visa.
The Applicant participated in an interview with a representative of the Department of Immigration and Border Protection (as it then was) (Department) (delegate’s interview).
On 7 March 2017, a delegate of the First Respondent refused to grant the visa.
On 10 March 2017, the Applicant sought review of the delegate’s decision.
On 3 April 2017, the Applicant made written submissions to the Immigration Assessment Authority (Authority).
On 27 November 2017, the Authority affirmed the delegate’s decision (Reasons).
Authority’s Reasons
The Authority’s Reasons commence with a summary of the material before the Authority and gave reasons for certain new information being considered or not considered: at [2] to [7] of the Reasons.
Specifically, the Authority decided to consider “new information” in the form of submissions of the Applicant’s representative as those submissions related to what the Authority characterised as:
(a)The reasons why the Applicant had not said anything at his entry interview (his 14 June 2013 arrival & induction interview) regarding his claim that his family had been involved in a land dispute: at [4] of the Reasons.
(b)The reasons why the Applicant would be at risk of harm in the specific locations of Islamabad and Rawalpindi: at [5] of the Reasons.
The Authority also obtained and decided to consider “new information” in the form of the DFAT Country Information Report: Pakistan dated 1 September 2017 (2017 DFAT Report) and EASO Country of Origin Information report Pakistan Security Situation dated 7 August 2019 (EASO Report): at [7] of the Reasons.
The Authority decided not to consider “new information” contained in the submissions of the Applicant’s representative to the extent of the reasons why it would be unreasonable for the Applicant to relocate in more general terms (that is, including because he would find it difficult to find employment and impossible to find accommodation in any area outside of Balochistan or Multan and because of ongoing conflict in Quetta where individuals who originate from Quetta are treated with a high level of suspicion in other areas of the country): at [6] of the Reasons.
At [8], the Authority then summarised the Applicant’s claims as:
•He is a national of Pakistan, and ethnic Punjabi and a Sunni Muslim who was born in 1988 in Quetta, Balochistan Province, Pakistan.
•His father was originally from the Multan area of Punjab Province where the family had land but this land was unlawfully occupied by a strong family who engaged in extreme violence. These persons kidnapped the applicant’s father and tortured him by giving him electric shocks such that he now suffers from mental illness. Following this the applicant’s father migrated with his wife (the applicant’s mother) to Quetta to start a new life and the applicant and his brother were born.
•From 1990 to 2008 he resided in the Hazara Town suburb of Quetta. While the applicant was young they received a telephone call telling them that the applicant’s uncle, Mr MSW, had been murdered by the family which occupied the applicant’s family’s land in Multan. In August 2014 the applicant’s youngest uncle, Mr MYW, was murdered by the family which occupied the applicant’s family’s land in Multan. He was shot dead by many guns and they then cut his body with knives. Due to the horrific violence perpetrated against his family by the family which has taken their land in Multan the applicant’s family has never returned to Multan.
•The applicant and his family had been living a normal life in Quetta but then extremist groups began to kill innocent civilians. These groups included, the Baloch Liberation Army (BLA), Lashkar-e Jhangvi (LeJ), Lashkar-e-Taiba (LeT), Sipah-e-Sahaba Pakistan (SSP) and Tehreek-e Taliban Pakistan (TTP). Many of the applicant’s friends were killed by these groups and the applicant and his family were threatened with death by the dropping of letters at their home on several occasions, and they were being chased on the roads by unknown persons. The applicant and his family were panicked and terrorised and due to this the applicant decided to escape Pakistan to save his life and so that as soon as possible he can bring his family out of Pakistan also.
•He was mentally and physically threatened and terrorised by the extremist groups who gave straight threats to kill the applicant and his family by dropping paper at their home. He was traumatised by the killing of close friends. The situation has not gotten any better and the applicant’s younger brother still goes to university where Ranger cars follow the bus to and from school. Due to army interference the situation has become partially better but these terrorist groups are still active everywhere in Quetta in Balochistan and are threatening and killing innocent civilians day after day and the applicant’s family is very worried.
•He fears that his life would not be safe anywhere in Pakistan because of the extremist groups who have networks all over Pakistan.
At [9]-[29], the Authority conducted its refugee assessment for the purposes of s.36(2)(a) of the Act.
The Authority considered the Applicant’s claim to fear harm on account of a family land dispute, including by reference to harm occasioned on other relatives and the migration of his family to Quetta before the Applicant was born. Ultimately, the Authority was not satisfied that the Applicant would face a real chance of harm in this respect: for reasons given at [12] to [19] of the Reasons.
The Authority also considered the Applicant’s claim to fear harm from extremist and terrorist groups, including by reference to having witnessed a violent attack and having been subject of threats and pursuit. The Authority accepted non-specific threats by letter were made to the Applicant and his family and that the Applicant witnessed the aftermath of an attack by gunmen in the area of his workplace – and that fears arising from those incidents led him to travel to Saudi Arabia for employment from 2009 to 2012 before returning to Quetta from which time the Authority did not accept that he was threatened again: at [21] of the Reasons. The Authority also considered country information before it – but, ultimately, considered the evidence to establish that violence perpetrated in Quetta such as attacks by separatist militant groups like the BLA against ethnic Punjabi civilians in Quetta and on places where Shia Hazaras gathered had diminished considerably and in recent times to the extent that it was not satisfied that there was a real chance of the Applicant coming to harm of any kind (even taking into account his association with the Hazara community). The Authority concluded that it was not satisfied the Applicant would face a real chance of serious harm if he was to return to his home area of Quetta and was therefore not satisfied he would suffer a real chance of serious harm in all areas of Pakistan: at [20] to [28] of the Reasons.
The Authority found that the Applicant did not meet the requirements of the definition of “refugee” in s.5H(1) and did not meet s.36(2)(a) of the Act: at [29] of the Reasons.
From [30], the Authority conducted its complementary protection assessment for the purposes of s.36(2)(aa) of the Act. The Authority noted the statutory standard for “significant harm”. And that, for the reasons given above, it was also not satisfied that the Applicant would face a real chance of harm of any kind for any reason if he were to return to his home area of Quetta, and therefore was not satisfied that the Applicant would face a real risk of suffering harm of any kind if he were to return to his home area of Quetta and therefore was not satisfied that the Applicant would face a “real risk of suffering significant harm” if he were to return to Pakistan: at [31] to [32].
At [33], the Authority concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and that the Applicant does not meet s.36(2)(aa).
THIS APPLICATION FOR JUDICIAL REVIEW
Procedural context
On 21 December 2017, an application for judicial review was filed together with an affidavit exhibiting a copy of the Reasons but adducing no other evidence. The originating materials indicated that the Applicant was not represented by a lawyer or migration agent at the time of filing.
On 17 January 2018, the First Respondent filed a response seeking that the application be dismissed with costs.
On 19 September 2018, procedural orders were made for the filing of materials and for a final hearing on a date to be advised.
On 1 October 2018, the Respondents filed a court book.
On 3 September 2019, the Applicant filed a notice of address for service which confirmed that he was then represented by Victoria Legal Aid.
On 9 September 2021, the Applicant filed an amended application which was not opposed.
On 25 July 2023, the matter was listed for final hearing on 4 September 2023 before the Court as presently constituted and programming orders were made which program was subsequently extended by consent.
On 11 August 2023, the Applicant filed an outline of submissions and an affidavit deposed by a solicitor of Victoria Legal Aid for the Applicant which annexed the following materials and was not opposed:
(a)a transcript of the recording of the Applicant’s entry interview;
(b)a copy of the September 2017 DFAT Report on Pakistan which was referred to by the Authority in its Reasons;
(c)a copy of EASO Country of Origin Information Report, Pakistan Security Situation dated August 2017 which was referred to by the Authority in its Reasons;
(d)a copy of the January 2016 DFAT Report on Pakistan which was referred to by the Authority in its Reasons; and
(e)a copy of the PIPS Research Journal, Conflict and Peace Studies, Pakistan Security Report, Vol 9-Spring 2017 dated Jan-June No.1 which was referred to by the Authority in its Reasons.
On 29 and 30 August 2023, the First Respondent filed their outline of written submissions and a list of authorities.
On 4 September 2023, the matter proceeded to final hearing before the Court as presently constituted. Both parties were represented by Counsel.
Grounds of judicial review
By the amended application, the Applicant identified three grounds of judicial review in the following terms:
1.The decision of the Second Respondent (the IAA) is affected by jurisdictional error in that the IAA unreasonably failed to exercise or consider exercising its power under s 473DC of the Migration Act 1958 (Cth) (the Act) to get new information from the applicant in the form of a response to the changed country information that emerged in the period between the applicant’s submissions to the IAA and the decision of the IAA.
2.The IAA constructively failed to conduct the review, in that it misapprehended the nature of its task and the role of an entry interview, or alternatively, its reliance on an omission in an entry interview to make an adverse credibility finding was irrational in the circumstances.
3.The IAA’s finding that the chance of harm from sectarian or generalised violence was remote was irrational, in that it could not rationally be drawn from the information on which the IAA relied for that finding, or alternatively, the IAA misunderstood the threshold to be applied to the real chance and real risk tests.
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The Applicant filed his application for a protection visa on 4 July 2016, at which time the applicable legislation was the Migration Act 1958 Act (Cth) No. 62 (as amended on 1 July 2016). The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and (aa) provides (and, at the relevant times, provided) that “a” criteria 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.
An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
Division 3 of Part 7AA, which concerns the subject “Conduct of review” is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerns how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65. This application is concerned with those powers at ss.473DC and 473DD:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
GROUND 1
Unreasonable failure to exercise the power under s.473DC to get information from the Applicant in the form of a response to the changed country information that emerged in the period between submissions to the Authority and the Authority’s decision
Respective contentions
The first ground was particularised as follows:
Particulars
(a)The IAA gave the applicant 21 days from the date of the delegate’s decision to provide submissions and new information and represented to the applicant that it expected to complete the review within 6 weeks.
(b)The applicant made submissions, including submissions about the then most current country information relevant to the applicant’s claims, on 3 April 2017.
(c)The IAA obtained new country information published on 7 August 2017 and 1 September 2017, 4 and 5 months after the deadline given to the applicant to provide information and submissions.
(d)The IAA considered that the new information substantially changed the assessment of conditions in the applicant’s home country, which assessment was material to the decision.
(e)The IAA made its decision on 27 November 2017, more than 8 months after the matter was referred to the IAA.
(f)The applicant had no opportunity to comment on the supposedly materially different conditions.
(g)The failure of the IAA to exercise or consider exercising its power under s 473DC to invite a response from the applicant to the supposedly materially changed conditions was unreasonable in the circumstances.
The Applicant accepted that the Authority was not required to disclose the new (changed country) information to the Applicant and invite a response. However the Applicant strongly argued that it was unreasonable in the circumstances not to do so. The circumstances were said to include the lapse of time in delivery of the Reasons, which meant that the Applicant was effectively precluded from addressing the new information because it was published after the referral application and submissions to the Authority had been made. Further that the Court should reach this conclusion when regard is had to the contents of the new information, which took on such importance in the Authority’s Reasons as to amount to a new situation and/or a complete change of circumstances in the Applicant’s home country and, the Applicant contended, was relied on to the Applicant’s detriment.
Whereas the First Respondent contended: that the new information subject of this first ground was used to depart from the findings of the delegate below but was just one of a multitude of factors that the Authority took into account in ultimately affirming the delegate’s decision; and, there being no obligation on the Authority to put it to the Applicant, did not result in any legal unreasonableness. Further, that there is nothing in the evidence before the Court to justify a finding that the Applicant would have said anything of utility to the Authority were they given an opportunity to address the new information in question.
Consideration
The statutory context is important in that Division 3 of Part 7AA is taken to be an exhaustive statement of the requirements of the rules of natural justice in relation to reviews conducted by the Authority. Ordinarily, a review by the Authority is to be conducted on the papers comprising the review material provided by the Department to the Authority in accordance with s.473DB of the Act. However the Authority is permitted to get new information if satisfied that the criteria at s.473DC of the Act are met and may only consider new information that was not before the delegate if the criteria at s.473DD are met.
The new country information subject of this first ground is the 2017 DFAT Report dated 1 September 2017 and the EASO Report dated 7 August 2017 which were published some months after the referral application and written submissions were made to the Authority (10 March and 3 April 2017, respectively). This information included what the Authority described as “updated information on the situation for persons from Quetta like the Applicant”.
It was not contentious that the Authority was entitled to get the new country information pursuant to s.473DC and to properly consider it pursuant to s.473DD of the Act. It follows that the Authority was necessarily satisfied, as it explained at [7] of the Reasons, that this information was not available at the time of the delegate’s decision and “exceptional circumstances” existed as to justify its consideration pursuant to the statute.
It was also not in issue that the Authority was not obliged to put the new country information to the Applicant for comment pursuant to s.473DE. The Applicant was not afforded such opportunity and could not have addressed it in his referral application or written submissions because the information did not exist at those times. It is apparent that it is only on account of the delay in delivery of the Reasons that the new country information came before the Authority at all.
These circumstances do not accord with orthodox principles of procedural fairness but in a Part 7AA referral that is not the measure.
As expressed in FGC17 v Minister for Home Affairs [2019] FCA 559 per Steward J (at [40]-[43]), this particular feature of the statutory scheme may lend a referred applicant to feel deprived of an opportunity to be heard but does not of itself sound in legal unreasonableness.
In Minister for Immigration and Border Protection vCRY16 [2017] FCAFC 210 (CRY16) at [81], a Full Court of the Federal Court of Australia did not accept the proposition that there is no obligation on the Authority to consider whether to bring new information obtained by it to the referred applicant’s attention - where that new information meant a complete change of circumstances in the applicant’s country of nationality. In CRY16, the Authority had affirmed the delegate’s decision but on a different basis (that it was reasonable to relocate within the home country). There the visa applicant was not on notice that the Authority would be considering relocation. The Full Court held that the power to get new information was not exercised in circumstances where the Authority knew that it did not have, but the individual visa applicant was likely to have, information relevant to the particular circumstances and the impact of relocation upon him. In those particular circumstances, the Authority was found to have acted unreasonably and without evident and intelligible justification.
The Court was also taken to a decision of this Court in DPV18 v Minister for Home Affairs & Anor [2019] FCCA 2762 per Riethmuller J (in particular, at [32]-[39]), where the circumstances were found to be within those contemplated at paragraph 81 of CRY16. In that case, the substantive issues were the same as before the delegate and the Authority but the Authority made findings contrary to that of the delegate based on material that only became available after the applicant’s submissions had been made to the Authority. The Authority in that case described the new information as “crucial” and was satisfied of “exceptional circumstances” as to justify its consideration. Riethmuller J reasoned that in those particular circumstances it was difficult to avoid the conclusion that it was legally unreasonable not to have also sought information from the referred applicant with respect to this new information, particularly given the discretion under s.473DC is not even so constrained as to require “exceptional circumstances”: at [38]-[39].
Equally here the Authority was required to proceed within the bounds of legal reasonableness and its consideration was required to be proper, genuine and realistic: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 2017 at [25]-[27]. It remains to determine whether the Authority acted in a way that was legally unreasonable as pleaded by this first ground.
The Applicant highlighted the Authority’s findings at [22]-[26] of the Reasons (essentially, as to the significantly diminished violence and risk of harm) which it said were drawn from the new country information and used to depart from the delegate’s finding that the Applicant faced a real risk of significant harm in Quetta. Specifically, and among other things, the Applicant was aggrieved by the finding at [25] of the Reasons – including of remoteness of risk to the Applicant (who would be returning to live in Quetta, a place largely dominated by Shia Hazaras and where the Applicant was found to have close personal ties with Shia Hazaras) which finding the Applicant said was drawn from paragraph 3.16 of the 2017 DFAT Report.
The Authority’s task was to decide the matter afresh and as such it was not restricted to correction of error in the delegate’s decision or the issues considered by the delegate to be determinative: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 as cited at [68] in CRY16. In my view, the fact of the Authority’s satisfaction as to the criteria of s.473DD(a) being met, as to justify the Authority’s consideration of the new information that it got in the exercise of its discretion under s.473DC, does not (without more) lend to a conclusion that the new information was given significant weight or was critical to the ultimate findings of risk. The Authority did not say that it considered that the new country information of itself represented a substantial change to the assessment of conditions in Pakistan. Further, in finding a reduced risk of violence in Pakistan, the Authority also referred to country information that pre-dated submissions made to it in the form of the Pakistan Security Report dated 1 January 2017 (for example, at [23] of the Reasons).
Here, the Applicant has not articulated with any persuasive force the submissions that would have been made (were the opportunity afforded) that would have supported a contrary conclusion by the Authority in its assessment of the risk of harm, as for there to be a realistic chance of a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26 at [1], [33]; see also Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 264 CLR 421 at 445 [45]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at 449 [2], 462 [85].
In relation to the 2017 DFAT Report, it may be accepted that paragraph 3.17 was absent from the earlier 2016 version and provided that there remained a moderate risk of sectarian violence in Pakistan faced by Shia Hazaras because of their religious beliefs and distinct appearance. However paragraph 3.17 also assessed a significant decrease in violent attacks and improvement in the security situation. The Applicant did not say what evidence he would have brought were he given the opportunity but contended that pointing to paragraph 3.17 itself would have realistically resulted in a different outcome. In my view, this submission goes no further than that the Applicant would have raised what was already obvious. In any event, there is no sound basis to infer that the Authority did not consider or misapplied paragraph 3.17 of the 2017 DFAT Report in the context of its findings at [26] of the Reasons. There, at [26], the Authority expressly considered the Applicant’s association with Shia Hazaras but concluded that he would face a lesser risk.
In relation to the EASO Report, it may be accepted that there are passages of section 2.2.3 which assess an ongoing risk of violent attacks to members of the Shia community in the province of Balochistan and a decline of security incidents there but that overall the number of deaths were higher (relevantly, in Quetta). In my view, the Authority did not incorrectly interpret this report as providing support for the proposition that the security situation had relevantly improved. Nor are the Authority’s Reasons properly characterised as finding “no” risk to the Applicant – it clearly considered there to be risk but assessed the risk of harm to the Applicant in attending places of Shia worship and religious processions was remote and otherwise was not persuaded the relevant thresholds were met as required by the statutory criteria.
The passages of the new country information that the Court was taken to do not, in my view, constitute or underscore a finding of a complete change of circumstances in the Applicant’s country of nationality such that it was legally unreasonable not to exercise the discretion to invite his response.
Further, the singular finding of a remote risk of the Applicant coming to harm in attending Shia places of worship or religious processions at [25] on account of evidence of reduced violence and improved security was not the only basis for the rejection of the Applicant’s claim. The Reasons disclose that the Authority made a series of findings which led to its overall assessment of the risk of harm to the Applicant.
I am not persuaded on what is before the Court that this is a case of the kind contemplated by the authorities as to justify a finding of legal unreasonableness as pleaded by this first ground.
This first ground does not succeed.
GROUND 3
Irrational in finding that the chance of harm from sectarian or generalised violence was remote, in that it could not rationally be drawn from the information on which the Authority relied or, alternatively, the Authority misunderstood the threshold to be applied to the real chance and real risk tests
Respective contentions
This third ground overlapped with the first ground. By this third ground, the Applicant also referred to the Authority’s apparent reliance on country information subject of the first ground in its finding of a reducing level of violence in Pakistan and associated decreased level of risk on return. This ground was particularised as follows:
Particulars
(a)The IAA focused on the supposed recent reduction in attacks by the Taliban and other insurgents in Quetta in considering the risk of serious or significant harm to be remote.
(b)The IAA failed to consider properly the prevailing level of risk by reference to the proper threshold, as opposed to the question of whether that level of risk had recently increased or decreased.
(c)Further and alternatively, the conclusion that the risk of harm was remote could not rationally be drawn from the evidence on which the IAA relied for that finding.
The Applicant submitted that the country information on which the Authority expressly relied could not rationally support its finding that the levels of sectarian and generalised violence in and around Quetta had diminished to the point of the chance of the Applicant suffering serious harm in such an attack was “remote”. And, being dispositive of the Applicant’s claims, the impugned reasoning constituted jurisdictional error of the kind identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [135].
Further and alternatively, the Applicant contended, that the Authority misunderstood and failed to complete its task with regard to the complementary protection assessment. The Applicant submitted that the Court should so find with regard to the reasoning in relation to the risk of harm from sectarian or generalised violence because paragraphs [30]-[33] of the Reasons do not make a separate assessment. Such approach was wrong because the earlier findings relied on (in relation to the s.36(2)(a) and “refugee” assessment) were focussed on findings of harm for a particular reason or that the Applicant would not be personally targeted, the thresholds at ss.36(2)(a) and (aa) being relevantly different: DQU16v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 (DQU16) at [18].
Whereas the First Respondent contended that the Authority’s Reasons disclosed express consideration of the risk of harm the Applicant would suffer from generalised violence in Quetta, with reference to earlier findings of a generalised level of risk and circumstances not particular to the Applicant or the Applicant’s particular situation.
The First Respondent also pointed to the Authority’s findings of a range of relevant matters in concluding that the risk of harm to the Applicant seemed remote and extended beyond the country information about a diminished or decreased level of risk. Accordingly, the First Respondent argued, the Authority’s findings were open to it to make.
Consideration
As earlier referenced, the Authority’s consideration must be within the bounds of legal reasonableness and demonstrated illogicality or irrationality in reasoning may give rise to an error of jurisdiction. However, mere disagreement with the decision-maker’s findings is not enough: AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [24]-[26].
In relation to the threshold issue, as explained by the High Court of Australia in DQU16 at [18], the statutory questions at ss.36(2)(a) and (aa) are different because the inquiry to be undertaken under each provision is different. The former requiring a finding of specific harm in the non-citizen’s particular circumstances and the latter focussed on the consequences of a non-citizen’s removal to a particular State.
Notwithstanding this distinction, it did not appear to be contentious as between the parties that the Authority may rely on findings made for the purposes of s.36(2)(a) assessment in making its s.36(2)(aa) assessment provided that it had completed the statutory task.
The Authority’s Reasons were not confined to the relative assessments highlighted in the Applicant’s submissions. The Authority’s Reasons also disclose consideration given to the consequences of the Applicant’s return to Quetta including by reference to evidence of the risk that the Applicant would face in terms of suffering harm from generalised violence in Quetta and expressly that this risk arose from circumstances where the Applicant was not the target of such violence: at [27] of the Reasons. There, at [27], the Authority also considered that other factors such as Punjab ethnicity and/or association with Shia Hazaras and/or having sought asylum from a western country did not give rise to the requisite satisfaction of the Applicant facing a real chance of harm for any reason. Then, in making its complementary protection assessment under s.36(2)(aa), at [32] and [33] of the Reasons, the Authority expressly relied on its earlier reasons in confirming it was not satisfied that the Applicant would face a real risk of suffering harm of any kind for any reason if he were to return to his home area of Quetta and therefore was not satisfied that the Applicant would face a real risk of suffering significant harm if he were to return to his home area of Quetta.
As the First Respondent pointed out, the Authority’s findings as to its assessment of risk to the Applicant on return to Quetta also included reliance on a raft of factual findings separate to the country information about the decreasing risk of violence. Those separate factual findings included that: the Authority did not accept that the Applicant and his family were ever subject of personal threats or pursued by a family in the context of a familial land dispute (subject of ground 2); the evidence did not indicate that Sunni Muslims or Sunni Punjabis were being specifically targeted by religious extremist groups on the basis of associations with Shia Hazaras or for attending Shia mosques in Quetta; and changing circumstances in deployment of security resources to Quetta and guarding of checkpoints in Hazara enclaves.
In my view, the finding at [25] of the Reasons (where the Authority found (among other things) a remoteness of risk to the Applicant coming to harm as a consequence of attending to practice his faith in Hazara Town given that Hazara enclaves like Hazara Town are now guarded by checkpoints maintained by both Pakistani security forces with residents having also increased security measures of their own accord) was rationally available on the evidence. As the Applicant emphasised, it is plain on the face of the Reasons that this particular finding as part of the findings at [25] expressly cited the Authority’s reliance on the 2017 DFAT Report as the source for such information. On inspection of the source document, to the extent of the reference to an improved security situation, this was plainly drawn from paragraph 3.16 and, to the extent of a significant decrease in violent attacks against Shia Hazaras, mitigated by high levels of security maintained by the communities themselves, this is drawn from paragraph 3.17 of the 2017 DFAT Report. However, that sentence of the Reasons is not to be read in isolation of the surrounding paragraphs and (as reasoned in relation to the first ground) do not disclose a misapplication of paragraph 3.17 of the DFAT Report. Also as considered above in relation to the first ground, the Authority made findings as to the significantly diminished violence and risk of harm at [22]-[26] of the Reasons and those findings were cited as drawn in part from the new country information, in part from the other evidence before it (and which was before the delegate) and the reliance on the 2017 DFAT Report at [25] of the Reasons was but one basis on which the Authority decided to depart from the delegate’s finding that the Applicant faced a real risk of significant harm in Quetta.
To the extent that the findings of reduction in violence and associated risk were based on the new country information in the form of the 2017 DFAT Report and the EASO Report, the source documents were before the Court and provide a sound foundation for the Authority’s conclusions (as reasoned above). Consistent with the new country information and the other evidence before the Authority (and that was before the delegate), the Reasons are not properly read as concluding that there is no risk or no residual or ongoing risk to the Applicant. Further, the Reasons are not limited only to the evidence in those reports underscoring its conclusion as to risk or by reason of the evidence of diminishing violence alone.
For these reasons, I do not discern that the Authority failed to complete its statutory task or an irrationality as plead by this third ground.
The Authority articulated a rational factual basis on the evidence that was before it and its findings in respect of this third ground were open to it.
This third ground is not made out.
GROUND 2
Failure to constructively conduct the review by misapprehending the nature of the Authority’s task and the role of an entry interview or alternatively by reliance on an omission in an entry interview to make an adverse credibility finding which was irrational in the circumstances
Respective contentions
The second ground was particularised as follows:
Particulars
(a)The IAA placed significant weight on the applicant’s omission to mention a land dispute involving his family in his entry interview, which he subsequently mentioned in his application and his interview with the delegate.
(b)The IAA failed to appreciate that the primary purpose of the entry interview is to ascertain biographical information and details about a person’s travel.
(c)The IAA failed to appreciate that the applicant’s response to the question in the entry interview as to why he left Pakistan was an accurate and rational response to the question he was asked and does not preclude there being other reasons to fear harm on return to Pakistan.
(d)The IAA’s misunderstanding and consequent misuse of the entry interview process led to a constructive failure to conduct the statutory task.
(e)Alternatively, the IAA’s finding that the omission of the land dispute from the entry interview undermined the applicant’s credibility was irrational in light of a proper understanding of the role and scope of an entry interview.
The Applicant submitted that the Authority misunderstood its task and/or the purpose of the arrival interview. This argument was developed by the contention that the Authority failed to apply the caution regarding the purpose and use of an entry interview as enunciated by the Full Court in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 (MZZJO) at [56]. The Applicant said that the Court should be satisfied that the Authority did this by reasoning that the family land dispute claims were fabricated, a key basis for which finding being that the Applicant did not mention that issue in his arrival interview, which is not intended to be an opportunity to provide a comprehensive statement of all claims for protection.
In treating the omission of the family land dispute claims from the arrival interview as a basis for finding that these claims were fabricated, the Applicant said the Authority displayed the same misconception about the nature and purpose of an arrival interview as that described in Minister for Home Affairs v AYJ17 [2019] FCA 591 (AYJ17) at [41]-[42]. And, also in reliance on AYJ17, the Applicant particularly pointed to a response given to the final question at his arrival interview – that his family was in danger and he was really worried for them – which he said was a high level summary capable of encompassing his claims.
The Applicant further submitted that the Authority disregarded the questions that were actually asked and the answers given in response to those specific questions, such that the Authority’s findings that the events subject of the family land dispute claims did not occur and therefore the Applicant did not face a real chance of serious harm in the future as a result were irrational or constituted a constructive failure to review in the sense contemplated in EMQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 947 (EMQ17) at [74].
Whereas the First Respondent contended that the Authority’s findings were not principally based on its consideration of the Applicant’s omission at entry interview and therefore is distinguishable from the decision in AYJ17 and akin to the consideration at paragraph [57] of MZZJO. The First Respondent also argued that it was open to the Authority to place some reliance on the Applicant’s failure to mention the land dispute at entry interview and, in truth, this ground invites the Court to undertake an impermissible merits review.
As to the alternative argument, the First Respondent contended that the Applicant’s claims about the family land dispute could not properly be said to have been encompassed in the Applicant’s other claims and therefore the conclusion of the Authority in this respect was not irrational.
Consideration
Subject of this second ground is the Authority’s reliance on the Applicant’s omission to claim to fear harm in connection with a family land dispute at an interview conducted on 14 June 2013.
At the outset, it is important to clarify that the said omission occurred at what is properly described as the Applicant’s arrival interview. That proposition was ultimately understood to be uncontentious, based on the parties’ written submissions and oral submissions made at the final hearing and notwithstanding that the amended pleadings and the Authority’s Reasons referred to the Applicant’s “entry interview” - where those references were plainly to an interview that occurred on 14 June 2013 - and where, by the transcript of interview and the Department’s contemporaneous record dated 14 June 2013, that interview is properly described as the “arrival interview”.
It is accepted that, at the arrival interview on 14 June 2013, the Applicant did not specifically mention the following as subsequently put in his visa application and the interview with the delegate:
·His claim to fear a family who stole his family’s land in the Multan area;
·Which family had made threats against his family and who had abducted and tortured his father and killed two of his uncles; and
·Which family had threatened to pursue his own family wherever they might go in Pakistan,
(hereinafter referred to, collectively, as the family land dispute claims).
The Authority found that the omission of the family land dispute claims at arrival interview was one of three reasons which combined to raise serious doubts about those claims. The Authority ultimately did not accept that any of these events had occurred or that the Applicant holds any fears of this kind and, therefore, was not satisfied that the Applicant would face a real chance of harm from such a family if he were to return to Pakistan (being a finding also relied on in concluding no real chance of significant harm for the purposes of the s.36(2)(aa) complementary protection assessment).
The principles from DAO16v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] as cited in AYJ17 v Minister for Immigration & Anor [2018] FCCA 2227 (AYJ17 first instance) at [96] include that an adverse finding of credit is ordinarily a matter for the administrative decision maker yet not beyond scrutiny on judicial review. And, on judicial review, that the Court must take care not to engage in an impermissible merits review: SZMDS at [96].
It may be accepted, on the authorities that this Court was taken to, that caution is appropriately to be taken in relation to adverse findings of credit based on evidence given at an arrival interview – including because an arrival interview is conducted primarily for the purpose of ascertaining the manner in which a visa applicant arrived in Australia and follows a series of pre-framed questions about biodata and travel: AYJ17 first instance at [95]-[96] which principle was upheld on appeal at [41]. That proposition is apt to the present case, when regard is had to the transcript of interview of 14 June 2013 which discloses the manner in which the subject interview proceeded on 14 June 2013 and the nature of the questions asked of the Applicant on that occasion. Other considerations relevant to the caution to be taken include the visa applicant’s recent arrival in Australia, that the Applicant had recently completed a lengthy and perhaps difficult journey, likely difficulties in comprehension and working with an interpreter and understanding the process and purpose of the questions asked regardless of the introductory statements made by the arrival interviewer: see MZZJO at [56].
In the present case, the Authority expressly paid regard to each of these considerations – the purpose and the nature of questions asked at the arrival; as well as the Applicant’s capacity or fitness (recording its consideration of the fact that the Applicant had arrived in Australia some three weeks prior on 24 May 2013 (although the delegate’s decision reflects in fact the Applicant’s arrival was earlier than this, on 24 April 2013) and describing that it had listened to the audio recording and assessed the Applicant as having sounded relaxed and comfortable and that he did not report any health concerns or pre-existing health conditions or medication requirements (Reasons, at [17] and [18])).
The authorities emphasise caution but do not say that no regard may be paid to omissions in evidence at an arrival interview. Here, the Authority turned its mind to the relevant considerations and logically reasoned as to why the identified omissions to mention the family land dispute claims was but one (of three) reasons why the Applicant’s family land dispute claims could not be accepted.
The omission being but one of a combination of factors underscoring the rejection of the family land dispute claims, there is no foundation for a conclusion that it was “the key” basis for rejection of the family land dispute claim or as having been attributed undue or “significant” weight by the Authority (as the Applicant, by their submissions and pleadings, contends). The other reasons which the Authority said combined to justify rejection of these claims were the Applicant’s evidence at the delegate’s interview, which the Authority found to be unconvincing, and the absence of any documentary evidence to substantiate the Applicant’s claims in this respect. Those other reasons were not subject of challenge in these proceedings and were open to the decision maker to so find.
The Reasons disclose that the Authority was cognisant not just of the limited purpose of the arrival interview but also the warning statement made at the start of the arrival interview that this was the Applicant’s opportunity to provide any reasons why he should not be removed from Australia and that inconsistencies in future information given could raise doubts about the reliability of his responses. Given the Authority’s express cognisance of the Applicant’s submissions about the explanation of his omission and the limited purpose and caution with which the arrival interview responses were to be treated in making findings as to credit, the Reasons are not properly characterised as a rejection of the relevant principles from the aforementioned authorities.
In my view, the Authority gave careful and logical reasons for its rejection of the Applicant’s claim in this respect and was entitled to conclude as it did. The Authority did not for any of the above reasons misunderstand and consequently misuse the arrival interview process nor did it misunderstand the task of its review.
To the extent that the Applicant sought to contend that the Applicant’s family land dispute claims were encompassed by his responses at arrival interview and did not preclude those specifics, the Reasons disclose that the Authority turned its mind to the Applicant’s responses to the few questions asked at the subject interview about why he had left Pakistan and whether anything specific had ever happened to him. The Authority accurately summarised those responses as generic. The Authority noted the Applicant’s claims to have received threats by letter and to have been followed which he said applied not just to himself but to his whole family. The Authority also noted the response about the Applicant’s fear that his family was in danger which makes him very worried. In my view, those responses may not preclude but are not properly described as encompassing the family land dispute claims which were subsequently articulated in the visa application and the delegate’s interview in very specific terms, including by reference to alleged murders of his father and two uncles, over a lengthy period of time. The facts here are quite distinct from that of EMQ17.
Taking the above matters into account, in my view, the Authority did not misapprehend the nature of its task or fail to conduct the statutory task to the extent that it relied on the said omissions at arrival interview to make an adverse credibility finding.
The Authority was cognisant of the need for caution and did not misunderstand the role and scope of an arrival or entry interview.
The Authority did depart from the delegate’s findings in relation to the family land dispute claims. However, as earlier referenced, the task of the Authority is to determine the matter afresh. The Authority may properly be loathe to depart from the delegate’s findings as to credit where the delegate had the benefit of an interview with an applicant and the Authority did not, yet is not obliged to conduct a further interview: see, for example, DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74]. But here the delegate also expressed doubt about the plausibility of the Applicant’s family land dispute claims - albeit was willing to accept the Applicant may have had some difficulties relating to a land dispute in Multan, whilst noting the Applicant did not claim that any of his family members had been harmed due to this outside of Multan – in my view, well short of accepting the family land dispute claims in their entirety.
The Authority logically explained why it did not accept the family land dispute claims and was entitled to take a different view on the relevance or significance of the evidence before it such as the alleged historical nature of these particular claims and country information as to commonality of disputes over land. That the Applicant contended for another outcome or that another decision maker may have decided differently is not to the point.
To the extent that the Applicant sought the Court to do so, I decline to engage in an impermissible merits review.
On what is before the Court, I am not persuaded that the high bar is met as argued in relation to this second ground.
For completeness, to the extent that by this ground, the Applicant asked the Court to find that the Authority failed to consider that the death of his younger uncle in August 2014 as a result of the familial land dispute had not yet occurred at the time of the arrival interview in 2013, that proposition can not succeed on the face of the Reasons at [16]. There, in the course of considering the family land dispute claims, the Authority expressly considered that the Applicant had claimed that just a few years ago, his other uncle, Mr MYW, was murdered in Multan. The Authority then noted the guidance provided to the Applicant as to the importance of providing evidence to support his claims and that the Applicant could not even provide any specific information about the family he claims to fear as raising serious doubts about the credit of his claims in this respect.
For the above reasons, this second ground does not succeed.
CONCLUSION
For the above reasons, the application for review is dismissed with costs.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 18 January 2024
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