FSR18 v Minister for Immigration and Anor (No.2)
[2020] FCCA 2585
•14 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FSR18 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 2585 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – applicant’s fear found not to be well founded – whether the Authority breached s.473DC of the Migration Act considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473DC |
| Cases cited: AWV18 v Minister for Home Affairs [2020] FCA 365 |
| Applicant: | FSR18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 257 of 2020 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2020 |
REPRESENTATION
| The applicant appeared in person by telephone |
| Solicitors for the Respondents: | Ms Sangha of Mills Oakley |
ORDERS
The application filed on 6 February 2020 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 257 of 2020
| FSR18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). A decision was made on 9 January 2020. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 31 August this year, which I adopt.
Background
The applicant is a male citizen of Pakistan who arrived in Australia as an unauthorised maritime boat arrival on 17 July 2013.[1]
[1] Court Book (CB) 189
On 13 August 2013, the applicant participated in an entry interview[2] where he first articulated his claims about why he left Pakistan. The applicant claimed he left his village because it was encircled by the Taliban and the army commenced an operation against the Taliban and required them to leave. The applicant feared instability and conflict.[3]
[2] CB 3-21
[3] CB 12-13
On 5 December 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV),[4] with the assistance of a registered migration agent.[5] The applicant claimed he was a Shia Muslim of Pashtun ethnicity and that he belonged to the Bangash tribe.[6]
[4] CB 24-66
[5] CB 33, 64-66
[6] CB 39
In a statement dated 21 November 2016 and provided with his visa application,[7] the applicant claimed the following:
a)the applicant grew up in a named village (home village), which was the only Shia village in the mountains and was surrounded by Sunni extremist villages. Sunnis attacked the Shia villagers and farms, and this impacted the applicant psychologically;[8]
b)he was a practising Shia Muslim who prayed three times a day and bore scars on his chest from self-flagellating at certain Shia holy processions;[9]
c)he feared harm from the Taliban, Lashkar-e-Jhangvi and other fundamentalist Sunni terrorist groups because he was: a practising Shia Muslim from Parachinar; of Pashtun ethnicity; from the Bangash tribe; and imputed with an anti-Taliban political opinion because of his religion and tribe;[10]
d)in early 2010, the applicant’s cousin (S) was pregnant and died after they were unable to get her to a hospital on time as they could not travel through a Taliban village and had to instead carry her through the mountains.[11] After S’s death, the applicant’s family moved to Parachinar to avoid more deaths in their family. The applicant had to continue working on the family farm in his home village as it was the family’s sole source of income;[12]
e)the applicant obtained a passport in January 2011, married in 2011 and had twins in 2012.[13] He also provided details of several violent attacks inflicted on Shias in and near Parachinar and in his home village between 2010 and February 2013, which included: a Taliban attack where an entire village was torched; an attack on a military convoy; a Taliban attack using rocket launchers in which another of the applicant’s cousins was killed; a bomb explosion targeting Shias; and a second bomb explosion in a Shia market; a villager travelling from his home village to Parachinar was shot on the road; and another neighbour died after stepping on a landmine whilst farming;[14]
f)the applicant returned to Parachinar to be with his family. As a young man and head of his family, he was at great risk of harm and was “most exposed”. He considered relocating but this was not reasonable because Shias were targeted in every city and he would not have the support of his “tribespeople”. On 17 May 2013, he fled Pakistan;[15]
g)since arriving in Australia, the situation in Pakistan had not improved and he described bomb blasts and roadside explosions that occurred in 2013, mid-2014 and late 2015. The applicant feared his children would be targeted at school by the Taliban and noted the Pakistani government had recently asked Parachinar elders to fight against ISIS;[16] and
h)the Pakistan authorities are unable to protect anyone. The Taliban was well established in Pakistan and Shias were targeted throughout Pakistan. The applicant was easily identifiable as a Shia by his national ID card, accent, surname and scars.[17] In other parts of Pakistan, Pashtuns are targeted by Punjabis.[18] The applicant was unable to relocate because his whole family was in Parachinar and he relied on his family and tribal support in Parachinar.[19]
[7] CB 67-72
[8] [5], [14]
[9] [7]
[10] [8], [13]
[11] [15]
[12] [15], [18]
[13] [17], [19]
[14] [15]-[17], [20]-[24]
[15] [24]
[16] [25]-[26]
[17] [29]-[32]
[18] [32]-[33]
[19] [34]
The applicant provided copies of his marriage certificate, a police clearance certificate and a translation of his identity card.[20]
[20] CB 58, 73-75
On 21 and 25 June 2018, the applicant submitted letters from an accredited mental health social worker dated 14 April 2018 and 24 June 2018, which stated the applicant suffered mental health issues from his experiences in Pakistan.[21]
[21] CB 93-101
On 6 August 2018, the applicant attended an interview with the delegate and elaborated on his protection claims.[22]
[22] The events of the interview are summarised in the delegate’s decisions CB 190-199
On 20 August 2018, the applicant’s representative provided a 37-page submission.[23] The submission[24] claimed, amongst other things, that the applicant lost “many family members and friends” in an attack on 25 April 2017 (the April 2017 claim). A statutory declaration by the applicant was also provided, which reiterated the reasons he could not return to Parachinar, the broader Kurram district or anywhere else within Pakistan. The applicant also claimed he suffered a serious injury while working in Australia which had left him unable to do manual work (the workplace injury claim) and that he had mental health problems because of his past experiences in Pakistan.[25]
[23] CB 118-182
[24] at CB 146
[25] CB 183-184
On 22 August 2018, the delegate refused to grant the applicant a SHEV. The delegate had regard to the significant Shia population in Pakistan, the relatively low number of reported attacks from 2016 to 2018 and the applicant’s “low profile” and found that the applicant could relocate to Lahore, Karachi or Islamabad and avoid any real chance of serious or significant harm now or in the reasonably foreseeable future.[26]
[26] CB 189-208
The Authority
On 23 August 2018, the matter was referred to the Authority.[27]
[27] CB 209-218
On 10 October 2018, a previously constituted Authority (A1) affirmed the delegate’s decision essentially on the basis that the applicant could relocate to Islamabad, where he would not face a real chance of serious or significant harm.[28]
[28] CB 232-248
On 29 October 2018, the applicant sought judicial review of A1’s decision. On 17 October 2019, I made orders remitting the matter back to the Authority[29] on the basis that A1 had erred in failing to consider the impact on the applicant of his family relocating to Islamabad with him.[30]
[29] CB 254-255
[30] FSR18 v Minister for Home Affairs & Anor [2018] FCCA 2295
On 5 November 2019, the applicant’s representative provided the presently constituted Authority with a submission and extensive documentation (68 pages), which included detailed country information on the Pakistani security situation.[31] The submission also included a claim that there was a continuing threat for Shia Turis from the Afghan Taliban and Daesh in Afghanistan (the Afghan claim).[32]
[31] CB 256-332
[32] CB 313-327
On 6 November 2019, the applicant submitted medical evidence and a further statement[33] on the workplace injury claim, stating that: he had been unable to work since a back injury; the damage from the injury was permanent and irreversible; and he could not find work in Pakistan as a result.[34]
[33] CB 333-346
[34] CB 334
The Authority’s decision
On 9 January 2020, the Authority again affirmed the delegate’s decision not to grant the applicant a SHEV.[35] In summary, the Authority:
[35] CB 356-373
a)referred to the new information provided by the applicant and was satisfied that there were exceptional circumstances for considering all of it;[36]
[36] CB 357-358, [2]-[8]
b)considered its discretion to obtain further information under s.473DC of the Migration Act 1958 (Cth) (Migration Act) and, whilst it acknowledged that some of its findings differed from the delegate’s, it was satisfied that the issues remained those that were before the delegate. Accordingly, it did not find it necessary to obtain new information from the applicant or otherwise seek his comment;[37]
[37] CB 358, [9]
c)accepted that all the claimed violent incidents in Pakistan, including S’s death, the various sectarian attacks and the convoy attack had occurred and that they impacted the applicant’s mental health, but found it difficult to accept that the applicant would have continued to travel between his home village and Parachinar for work in the circumstances. On this basis, it also accepted that the applicant felt he was threatened by extremist groups whilst living in Pakistan and had some proximity to some of the incidents as he had claimed, but was not satisfied that he was ever harmed, directly threatened or was directly at threat from any extremist or armed groups;[38]
d)accepted the workplace injury claim but noted that the applicant’s medical evidence indicated that the injury was not permanent;[39]
e)accepted that Pashtun (Turi-Bangash) Shias had been targeted by terrorist and militant groups in the past but found on the basis of country information about Parachinar that the security environment in Parachinar and Kurram had improved significantly and that security continued to be maintained. It found there was no information before it to suggest that the improved security situation was not likely to continue;[40]
f)considered the Afghan claim and the Facebook posts but found the evidence did not suggest that the current security situation in Afghanistan had the potential to directly impact the security situation in Kurram. It was therefore not prepared to accept the Afghan claim or that the risk from any extremist group in Afghanistan was anything more than speculative;[41]
g)accepted that sectarian violence continued to occur in Pakistan and that there were “extant risks” from Sunni groups active in Pakistan but, having regard to country information on the security environment in Pakistan, it considered the risks in Kurram and Parachinar were remote;[42]
h)found the applicant would return to live in Upper Kurram (that is, where he used to live), which was a majority Shia Pashtun area and, on this basis, found the chance of him facing religious, ethnic or tribal discrimination was remote;[43]
i)accepted that the applicant would likely return to Upper Kurram via the Thall-Parachinar Road but gave weight to the fact that there were few recent reports of attacks on the road against Shia Turis. It therefore found the likelihood of an attack was credible but remote. It also accepted that the applicant would return to work in Parachinar but found he would not face the same vulnerabilities as other internally displaced persons because he had a family, accommodation and tribal links in Parachinar;[44]
j)referred to the workplace injury claim and accepted there were limits to the quality of health care in Pakistan but had no reason to find that the applicant would not be able to access it. It referred to the evidence of his back injury and that it indicated he could return to physical work soon. In all the circumstances, it was satisfied it would be reasonable for him to return to and remain in Parachinar;[45]
k)referred to the applicant’s claimed fear from “general insecurity” and his reference to a United National High Commissioner for Refugees (UNHCR) assessment, but noted the assessment was from 2012 and more recent advice indicated that the security situation in Parachinar and the broader Kurram Agency area had improved. It was not satisfied there was a real chance of harm from insurgent, criminal or generalised violence or due to any religious, ethnic or tribal profile within Kurram or Parachinar; and[46]
l)referred to its anterior claims and was also not satisfied that any brief period of questioning or detention on return would constitute significant harm. It acknowledged the applicant’s physical and mental health issues and accepted that they would require treatment on return to Parachinar but found no evidence that he would be denied access to health care. Whilst sympathetic, the Authority was not satisfied that any challenges in relation to the applicant’s mental and physical health would amount to significant harm.[47]
[38] CB 359-361, [18]-[24]
[39] CB 361-362, [26]-[30]
[40] CB 364-365, [38]-[47]
[41] CB 365, [48]
[42] CB 365, [49]
[43] CB 366, [51]
[44] CB 366, [53]-[54]
[45] CB 366-367, [55]
[46] CB 367, [56]
[47] CB 369, [66]-[68]
On the basis of these findings and considering the applicant’s profile cumulatively, the Authority was not satisfied that the applicant met either s.36(2)(a) or s.36(2)(aa) of the Migration Act and affirmed the delegate’s refusal decision. Having found that the applicant would not face a risk of harm in Parachinar or Kurram, the Authority found it did not need to consider the issue of relocation.[48]
[48] CB 368-369, [62]-[63], [70]
The current proceedings
These proceedings began with a show cause application filed on 6 February 2020. There is one ground in it:
1. The IAA made a jurisdictional error b failing to consider whether to invite me to an interview. That was in breach of section 473DC.
(errors in original)
I have before me as evidence the applicant’s affidavit accompanying his application and the court book filed on 4 March 2020. I marked for identification[49] a medical certificate by Dr Seyed Zia Hossein dated 6 September 2020.
[49] MFIA1
Dr Hossein certified that the applicant would be unfit to attend today’s hearing. It appears that the doctor envisaged a personal attendance because the applicant accepted the opportunity to appear today by telephone from home.
What is significant, however, is that the doctor refers to an ongoing serious back injury suffered by the applicant. The doctor refers to the applicant suffering ongoing chronic pain leading to severe depression.
The issue raised in the application cannot succeed. That is because the Authority specifically considered inviting the applicant to an interview or to provide further information at [9] of its reasons.[50]
[50] CB 358
The Authority had taken a generous and expansive view of the consideration of new information from [2] - [8] of its reasons. A significant part of that new information was submitted on behalf of the applicant. I agree with the Minister’s submissions concerning the ground of review and I adopt them.
The application for judicial review raises one ground that alleges the Authority erred by failing to consider whether to invite the applicant to an interview “in breach” of s.473DC of the Migration Act. However, this allegation is baseless because the Authority[51] expressly considered its discretion whether to invite the applicant to an interview or to seek his comments in writing, but was satisfied that the issues on the review remained those that were before the delegate. The Authority found the applicant was given a fair interview before the Minister’s Department and benefitted from legal representation throughout the process and from comprehensive submissions.
[51] CB 358, [9]
While the Authority’s findings differed from those of the delegate in several respects, it was entitled to affirm the decision under review for different reasons to the delegate.[52] The Authority was not required to inform the applicant of specific reservations about his case and it was open to it to disagree with the delegate’s evaluation of the material without providing the applicant with any opportunity to respond.[53] The courts will not lightly interfere with the exercise of a statutory power involving an exercise of discretion.[54]
[52] BMB16 v Minister for Immigration [2017] FCAFC 169
[53] MZAEU v Minister for Immigration [2016] FCAFC 100 at [47]
[54] Minister for Immigration v SZVFW (2018) 264 CLR 541 at [84], cited with approval in AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365
In all the circumstances, it cannot be maintained that the Authority failed to consider the discretion afforded to it under s.473DC of the Migration Act. This ground cannot be made out.
In his oral submissions today, the applicant complained that the Authority did not take proper account of his physical and mental health conditions. The Minister’s solicitor noted the medical information provided to the Authority from the court book 335 - 338. A Workcover report was also provided, reproduced from 339 of the court book. The Authority considered that information in its reasons from [28] – [31]. The Authority reached conclusions on the information in relation to its refugee assessment at [55] and in relation to the complementary protection assessment at [68].
I reject the contention that the applicant’s physical and mental health was not adequately considered by the Authority. The Authority reasoned that the applicant’s physical condition would resolve in a few months following surgery.
The medical certificate provided by Dr Hossein to the Court indicates that, on the contrary, the condition has flared up again and is causing the applicant debilitating pain. The doctor notes that the severe pain which the applicant is experiencing may require further surgery and is causing him severe depression. These are significant matters which could not be considered by the Authority as they post-date the Authority decision. They are matters which would be appropriate for the Minister’s Department to consider. That is beyond the scope of this proceeding.
I conclude that the applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error.
The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. The applicant doubted his capacity to pay, but impecuniosity is not a reason for the Court to refrain from making a costs order.
I will therefore order that the applicant is to pay the first respondents costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 September 2020
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