Gaw18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1332
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
GAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1332
File number: MLG 3514 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 18 June 2021 Catchwords: MIGRATION – protection visa – decision of the Immigration Assessment Authority – whether the IAA applied the wrong test – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), pt 7AA, div 3, ss 5, 5J, 36, 46A, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 476 Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
MZANX v Minister for Immigration & Border Protection [2017] FCA 307
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZATV v Minster for Immigration & Citizenship (2007) 233 CLR 18
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 97 Date of hearing: 14 June 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms A Ladhams Second Respondent: Submitting appearance save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3514 of 2018 BETWEEN: GAW18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
The applicant is a citizen of Pakistan. He arrived in Australia as an unauthorised maritime arrival in June 2013 (Court Book (“CB”) 121).
On 12 August 2016, the first respondent (the “Minister”) lifted the bar under s 46A(2) of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a protection visa (CB 27-31).
On 18 May 2017, the applicant applied for a Temporary Protection (subclass 785) visa (the “visa”) (CB 32-79). The applicant summarised his protection claim as follows:
51. In summary, I fear harm throughout the whole of Pakistan including abduction, physical assault and murder at the hands of the Taliban and other associated groups on the basis of my religion and being from Parachinar. I have personally been a member of groups of Shia Muslims and people living in Parachinar which have been targeted by my feared persecutors. I cannot rely on the protection of the Pakistan state and cannot safely relocate anywhere else in Pakistan.
The applicant attended an interview before a Ministerial delegate on 29 May 2018 (CB 114-115).
On 4 July 2018, the delegate refused to grant the applicant the visa (CB 121-136). The delegate determined that the applicant could relocate to Karachi, Lahore or Islamabad in Pakistan where “there would not be a real risk that he will suffer significant harm”.
The applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) on 9 July 2018 (CB 137-149).
On 30 July 2018, the applicant’s migration agent provided written submissions to the IAA (CB 153-158).
On 26 October 2018, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 162-178).
On 22 November 2018, the applicant applied to this Court for judicial review of the IAA’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA fell into jurisdictional error.
THE IAA’S DECISION
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act, which provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB of the Act, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision is 17 pages long and spans 51 paragraphs. Four pages extract the relevant legislative provisions. The IAA summarises those provisions at [22]-[23] and [43]-[44] of its decision.
The IAA confirmed that it had had regard to the review material referred under s 473CB of the Act (at [3]).
The IAA then noted that the applicant’s submissions contained argument, new claims and new country information. The IAA had regard to the arguments put forward in the submission (at [4]).
The IAA found that the new country information on the second page of the submission did not meet either limb of s 473DD(b) of the Act (at [5]). The IAA also found that the country information set out on page four of the submissions also failed to meet s 473DD(b) of the Act (at [6]). It was also noted that the applicant provided information about CNIC applications. However, the applicant had not provided a copy of the source material. The IAA determined that this information also failed to satisfy the requirements set out in s 473DD(b) of the Act (at [7]). On that basis, the IAA did not have regard to any of this information.
The IAA explained that the applicant’s agent had argued that the delegate did not explore the applicant’s claims of discrimination and, as the applicant was not represented before the delegate, he should be given another opportunity to provide his claims. The IAA determined that the applicant had provided comprehensive answers at the delegate’s interview and that he had an opportunity to present his claims. Accordingly, the IAA declined to invite the applicant to attend an interview before it (at [8]).
The IAA noted that the applicant’s agent had invited the IAA to put additional concerns to the applicant prior to determination. The IAA was satisfied that the applicant had given a credible account of his experiences in Pakistan. It chose to review the matter based on the referred material and the applicant’s submission without further correspondence with the applicant’s representative (at [9]).
The IAA then summarised the applicant’s claims (at [10]).
The IAA noted that the applicant’s family remain in Parachinar and that it had considered information in relation to Turis from Parachinar and Bangash Shia from Parachinar (at [11]). The IAA was satisfied that the applicant was a Bangash Shia from Parachinar and that Pakistan was his receiving country (at [12]).
The IAA then summarised the applicant’s claims about the violence he experienced in Parachinar and noted that that the applicant believed that the Taliban or groups associated with the Taliban were responsible for that violence (at [13]). The IAA noted that the applicant had not provided any supporting evidence in this regard. However, the country information supported the applicant’s claims and the IAA accepted that the applicant and his family were affected by violence in Parachinar. The IAA did not, however, accept that the applicant was personally targeted or harmed (at [14]).
The IAA considered the applicant’s claim about kidnappings and killings in his hostel in Islamabad in 2011 (at [15]). Again, based on country information, the IAA was prepared to accept that there was an attack on the hostel that the applicant had stayed in but noted that the applicant was not there at the time and was not harmed (at [16]).
The IAA explained that the applicant had claimed in the interview with the delegate that he was involved in a protest in 2011 aimed at raising awareness about the security situation for Shias. It was noted that the applicant claimed that as a result, “his profile was elevated making him a prime target” (at [17]). The IAA also noted that although the applicant had not provided any evidence in this regard the IAA nonetheless accepted that the applicant took part in the protest. However, the IAA did not accept that the applicant came to any adverse attention or had any profile as a political activist (at [18]).
The IAA continued:
19.The applicant claims that after his participation in the protest the school Principal received a threat regarding his safety. The Principal then told his uncle about the threat and said that it was not safe for him to continue studying in Rawalpindi. The applicant has no direct knowledge of the claimed threat or what the Principal told his uncle. He only knows what he was told by his uncle and that his uncle arranged for him to leave Pakistan. In his TPV interview the applicant was unable to provide any further detail about the nature of the claimed threat. He did say that he had been told that his cousin also received the same advice from the school Principal although he did not leave Pakistan until recently (some five years after the protest). The applicant stated that he is not sure if other students received the same advice from the Principal.
20.If the Principal had concerns about the safely of any of the students at the school it is plausible that would be discussed with their guardians and a decision made in the interest of the student and school. However, the applicant appears to have very limited information about any threat made against him. He has provided no evidence from the school Principal or his uncle that there was a threat in spite of the fact that his uncle has provided him with a range of documentation since he arrived in Australia. There is no other evidence before me that it was unsafe for the applicant in particular or students in general to be studying at his particular school in Rawalpindi. The applicant has not explained or demonstrated why he would be a particular target for militants given that over 500 students were involved in a peaceful protest, and his cousin who he claims received the same warning only left Pakistan some five years after the claimed warning. Regardless of what the applicant may have been told by his uncle, I do not accept that the Principal advised the applicant’s uncle that he received a threat against the applicant or that it was not safe for him to continue studying in Rawalpindi.
The IAA accepted that the applicant had been involved in the 2014 data breach and that his name, date of birth, nationality, gender and location of his detention had been released (at [21]).
The IAA then explained that the applicant had not personally been harmed because of his ethnicity or religion but had witnessed attacks on the Shia population generally. The IAA did not accept that the applicant and his family had profiles as Shias outside their local community or that the applicant had any adverse profile “with the Taliban or any other militant or sectarian organisation as a result of his participation in a protest in 2012 or for any other reason” (at [24]).
The IAA then noted that Turis face a low level of official discrimination and that the applicant had not indicated that he had faced any discrimination in Pakistan on the basis of his Bangash ethnicity (at [25]). The IAA also summarised the country information - which indicated that the “Turis in Parachinar face a moderate risk of violence from sectarian violence” because of their religion (at [26]). There was also information before the IAA that there continued to be attacks against Shia in the Kurram Agency (at [27]).
The IAA concluded:
28. I consider that the information cited above indicates that there is a real and not remote chance that the applicant may be harmed by sectarian violence in Parachinar and that any harm the applicant may face will be for the essential and significant reason of his religion. I am further satisfied that the harm he may face will include death or serious injury and is thus serious harm as contemplated by s.5J(3). I am satisfied that the applicant faces a real chance of serious harm should he return to Parachinar.
The IAA then noted:
29.Section 5J(1)(c) of the Act requires that the real chance of persecution relates to all areas of the receiving country. The applicant claims that he lived in Islamabad in the past as it is the safest place for Shias in Pakistan but even there he was not safe. He claims that there is no region within Pakistan in which he can escape the real chance of serious or significant harm that he fears as a Shia Muslim and as a Bangash tribesman.
The IAA summarised the country information relevant to Islamabad (at [30]). It noted that the applicant was not a “high profile Shia” and had “expressed no specific political opinions aside from his concerns about the security situation in Parachinar”. He had also “not been involved in any activities in Australia which would attract the adverse attention of extremists in Pakistan”. There was also no information to suggest that insurgents targeted people who had sought asylum or that returnees from Western countries faced societal violence in places such as Islamabad (at [31]). Further, the risk to Shias in Islamabad was considered very low (at [32]).
The IAA then noted:
33.The applicant has expressed concerns about discrimination against Pashtun people in Pakistan. DFAT notes that some members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty obtaining identification documents. Since the commencement of the most recent security operations, large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities—due largely to the fact that the Taliban’s support base is primarily Pashtun. Hundreds of Pashtuns were also arrested in the lead-up to a proposed (later cancelled) large-scale political protest in early November 2016. Members of the Pashtun community told DFAT that community leaders are typically able to secure the release of Pashtuns who have been arrested without firm evidence of wrongdoing. I do not consider that the applicant, as a Bangash Shia in Islamabad will face a real chance of harassment on the basis of his Pashtun ethnicity as, due to his Shia religion, he would not be suspected of being with the Taliban and therefore a terrorist threat.
The IAA continued:
34. The applicant has also submitted that he would not be able to find work and subsist outside of Parachinar. He speaks mainly Pashtu and only has limited Urdu and English. He has limited or a lack of professional skills and he has no family network and a poor financial situation and moving to a large urban area will be unaffordable. His ability to find work and accommodation will be impacted by the fact that he cannot get a CNIC without travelling to Parachinar where he is not safe. The applicant indicated in his TPV application that he speaks, reads and writes Pashtu, Urdu and English and he completed his high school education in Rawalpindi. I do not accept that he has limited language skills that would impact on his ability to find work in Islamabad. He stated that he had been admitted to college and was interested in studying medicine, but he did not attend college because he came to Australia. I accept that he has not undertaken higher education but I do note that he has managed to find work in Australia and has variously worked in the cleaning and security industries and also works part time as an Uber driver. He was able to obtain a security qualification in Australia and found government related employment. He also found share accommodation in the absence of any family support. I accept that if he returns to Islamabad, the applicant may be separated from his family, at least initially. He claims that both his uncle and brother travelled to and spent time in Islamabad. His uncle was working in a government role there and his brother was seeking employment. He has not claimed, and the information before me does not indicate, that members of his family would be unable to visit him in Islamabad should he or they wish to do so, or that he will otherwise face further separation from his family if he returns to Pakistan and relocates to Islamabad.
35. The applicant has advised that he cannot safely relocate to Pakistan as he does not hold a CNIC and cannot safely obtain one. He submits that he has held a juvenile identity card but, as an adult from Parachinar and never having previously held a CNIC, he will be required to attend a National Database and Registration Authority (NADRA) office in Parachinar in order to process his application. He cannot safely return to Parachinar. I have considered advice on the NADRA website. It would appear that in the case of a first time application he can commence the process with a National Identity Card for Overseas Pakistanis (NICOP) which can be obtained in Australia. He can also apply using the attestation any blood or immediate relative or using their original identity document and attestation. The website notes that applicants from the Federally Administered Tribal Areas (FATA) are eligible to process their application from anywhere in Pakistan. It is only if their parents do not have their identity registered then countersign by a Political Agent will be mandatory. The applicant has not indicated that his parents are not registered or that they would be prevented from travelling to Islamabad or another major city if needed to support his application. I am satisfied that the applicant can apply for a new CNIC from anywhere in Pakistan and I do not accept that he has to return to Parachinar to apply for a CNIC. The applicant has the option of obtaining a NICOP in Australia and then using that document to obtain a CNIC or using his parent’s registration information. I am therefore satisfied that he would be able to safely renew his CNIC in any major centre such as Islamabad.
The IAA found that the applicant would not face a real chance of harm because of his ethnicity, religion or generalised and sectarian violence in Islamabad (at [36]-[37]).
The IAA accepted that the applicant would be returning to Pakistan as an unsuccessful asylum seeker who had lived in Australia for more than five years. It was noted that there was no information which indicated that returnees were targeted for seeking asylum overseas (at [38]).
As the applicant had departed Pakistan legally, the IAA determined that the applicant did not appear to have committed immigration or other offences which would draw the attention of the Pakistani authorities. The IAA was not satisfied that the applicant would encounter any harm on arrival at the airport (at [39]).
The IAA then determined that the fact that the applicant had returned from a Western country would not be known more broadly in Islamabad. The country information did not indicate that those returning to Pakistan would be imputed with pro-western or anti-Taliban views or were at risk of societal violence or discrimination (at [40]). The IAA determined that while the applicant may have changed certain characteristics since living in Australia (dress sense, general demeanour), Western influence in Pakistan was pervasive and individuals were not at risk of discrimination or violence on the basis of having spent time in Western countries (at [41]).
The IAA concluded that the applicant did not meet the relevant refugee criterion (at [42]).
In relation to the complementary protection, the IAA referred to its findings in relation to the refugee criterion and concluded that the applicant would face a real risk of significant harm in Parachinar (at [45]).
The IAA then referred to s 36(2B) of the Act and stated that, for the same reasons as provided in the refugee assessment, the IAA was not satisfied that the applicant faces a real risk of harm in Islamabad (at [46]-[47]).
The IAA continued:
48. The applicant has made submissions to the IAA in relation to the delegate’s findings on relocation as to why he cannot relocate to another part of Pakistan, including Islamabad. He submitted that he can be identified as a Bangash Shia anywhere he goes in Pakistan because of his accent from Parachinar, his physical appearance and his name which is overwhelmingly Shia. He claims that Pashtuns from the FATA are racially profiled and may be subject to extra judicial killings on the basis that they are feared to be terrorists. As noted above, I do not accept that the applicant, as a Bangash Shia in Islamabad will face harassment on the basis of his Pashtun ethnicity as, due to his religion, he would not be suspected of being with the Taliban and therefore a terrorist threat. Further, the information in the review material does not indicate that Shias, Bangash or returned asylum seekers are subject to any discrimination or difficulties in Islamabad in obtaining employment, accommodation or in accessing health care or other services. As noted above, large urban centres such as Islamabad tend to have ethnically- and religiously-diverse populations, and offer a level of anonymity for people seeking refuge from violence by non-state actors. Islamabad has a population of around two million people, including a large number of internal migrants from all parts of the country. There is a strong security presence, including checkpoints throughout the city and its entry points, and patrols by the paramilitary Rangers. These security measures provide a strong deterrent to militant groups planning attacks in the capital, and large-scale militant or sectarian attacks in Islamabad are rare.
49. I do not consider that the applicant would be precluded from finding work and subsisting outside of Parachinar. As I have noted, I consider that he could obtain a CNIC in Islamabad and he has demonstrated an ability to find work and accommodation during his time in Australia. According to DFAT, Pakistan has seen improved economic growth and reduced inflation in recent years and the number of people living in poverty has fallen. There is still some dissatisfaction with the low level of development, which has acted as a “push” factor for external migration, but there are also better economic opportunities in large urban centres which have encouraged internal migration. The cities also offer better access to healthcare and education. I consider that the applicant will have better access to healthcare, education and employment opportunities in a large city like Islamabad as opposed to his village home. I consider that the applicant’s life in Australia demonstrates his resilience and his ability to find and sustain work in a completely difference culture without any family support. Further, Islamabad has Turi and Shia communities and I consider that the applicant will be able to interact with these communities in Islamabad.
Overall, the IAA was satisfied that relocation to Islamabad was reasonable and, as such, the applicant did not to face a real risk of harm in Pakistan (at [50]). Accordingly, the applicant did not meet the complementary protection criterion (at [51]).
On the basis of the above, the IAA affirmed the delegate’s decision not to grant the applicant the visa he was seeking.
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 22 November 2018 contains two grounds of review as follows:
1. The Immigration Assessment Authority applied the wrong legal test.
2. The Immigration Assessment Authority did not afford me procedural fairness.
The applicant filed an affidavit in support of his application on 22 November 2018. The applicant was also given an opportunity to file an amended application, further affidavit evidence and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review filed on 22 November 2018 and supporting affidavit, a Court Book numbering 180 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 31 May 2021.
The applicant appeared before the Court without legal representation. He was assisted by a Pashto interpreter. At the hearing, the applicant confirmed that he had received a copy of the Court Book and the Minister’s written submissions. The Minister was represented by Ms Ladhams.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that it needed to determine whether the IAA had made a jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
(b)where the decision-maker ignores relevant material: Craig at [198];
(c)where the decision-maker relies on irrelevant material: Craig at [198];
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
(e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA made a material error in coming to the conclusion that it did.
Against this background, the applicant took issue with the IAA’s substantive decision. In effect, he disagreed that relocation in Pakistan (or in Islamabad specifically) was a realistic option and was concerned that he was now so engrained in Australian society that moving back to Pakistan was also not an option. To the extent that the applicant’s oral submissions seek merits review, the Court cannot assist him. Otherwise, his oral submissions are addressed below.
CONSIDERATION
Ground 1
Ground 1 provides:
The Immigration Assessment Authority applied the wrong legal test.
The applicant’s judicial review application does not contain particulars. He has not specified what “legal test” was incorrectly applied by the IAA. Nor did the applicant clarify his concerns in oral submissions to this Court.
There are a number of possible errors the applicant could be claiming. Specifically, he could be saying that:
(a)the IAA incorrectly applied s 473DD of the Act;
(b)the IAA incorrectly applied the “real chance test”;
(c)the IAA incorrectly applied s 5J(3) of the Act; and/or
(d)the IAA incorrectly applied s 36(2B) of the Act.
The Court will address these “possibilities” in turn.
The IAA’s consideration of s 473DD of the Act was undertaken in relation to the submissions that the applicant’s migration agent had provided to the IAA.
The IAA began by stating:
4.On 30 July 2018 the applicant’s representative sent a submission to the IAA which contains argument in support of the applicant’s claims, new claims and new country information to support those claims. I have had regard to the argument put forward regarding the delegate’s decision, in particular relating to: the safety issues at the applicant’s former school in Rawalpindi; addressing claims of hardship and discrimination; the interpretation of the applicant’s surname as an overwhelmingly Shia name; the reasonableness of relocation to other areas in Pakistan; having Western traits; and the difficulty of obtaining a Computerised National Identity Card (CNIC).
The IAA’s decision to have regard to the submissions is entirely sound. The submissions were not “new information”. They were arguments directed to an existing pool of factual information that was already before the delegate: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80.
The IAA continued:
5.Page two of the submission makes reference to new country information that was not before the delegate and is provided in support of the applicant’s claim that each and every incidence of violence against schools does not get media coverage or is reported. There is a paragraph from a 2017 Human Rights Watch report to this effect and an extract of an article from The Diplomat dated 27 April 2018 which notes that Islamist militant groups target schools. I have not considered this new information as it pre-dates the delegate’s decision and I am not satisfied that it could not have been provided to the delegate before the decision was made and I am not satisfied that it contains credible personal information.
The IAA’s application of the law is, again, entirely sound. The articles pre-dated the delegate’s decision. The applicant advanced no reason why this information could not have been provided prior to the delegate’s decision. The information was also country information. It cannot therefore be accepted as “credible personal information”. The IAA was correct in its determination in this regard.
The IAA continued:
6.Page four of the submission makes reference to new country information to support the applicant’s claim that Pashtuns are targeted and killed in Karachi and other areas of Pakistan and this is not widely reported. He has cited two news articles from the New York Times dated 23 January 2018 and 6 February 2018 and one news article from The Nation dated 15 June 2015 all of which were published some time before the delegate’s decision, I am not satisfied that this information could not have been provided to the delegate before the decision was made and I am not satisfied that the extracts provided contain credible personal information. I have therefore not considered this new information.
For the reasons given in relation to [5] of the IAA’s decision, this assessment is entirely sound. The information pre-dated the delegate’s decision and the applicant had not satisfied the IAA that it could not have been provided earlier. The information was, again, general country information and therefore not credible personal information. The IAA applied the correct test.
The IAA’s final application of s 473DD of the Act was as follows:
7.On page five of the submission the applicant’s representative refers to information about CNIC applications. No extract or copy of the source material has been provided as required by the IAA Practice Direction. Even if I were to accept this information despite this noncompliance, the applicant has not satisfied me as to either of the matters in s.473DD(b).
As the applicant had not provided the source of the information, the IAA could not be satisfied that the information could not have been provided to the delegate or that it was credible personal information. That is, the information could have post-dated the delegate’s decision (and therefore possibly met s 473DD(b)(i) of the Act). However, the applicant had not provided the source of the information. This meant that the IAA could not be satisfied that this was the case. There was no misapplication of s 473DD of the Act in this regard.
The IAA correctly applied s 473DD of the Act. Notably, the IAA first considered and determined whether s 473DD of the Act was met. This approach was endorsed by the High Court as the correct approach when considering s 473DD of the Act: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37.
No error arises in relation to the application of s 473DD of the Act.
Turning to the application of the “real chance test”, the IAA clearly applied the correct approach. For example, the IAA (at [28]) accepted that there was a “real” and not “remote” chance that the applicant would face harm in Parachinar. It uses the term “remote” at [38] to conclude that the chance of harm in Islamabad was not a real one. The use of this language, which has been endorsed by the Courts (see, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379), demonstrates that the IAA understood and applied the correct legal test when determining the chance or risk of harm.
There is nothing in the IAA’s reasons which demonstrates that the IAA incorrectly applied the real chance test to the applicant’s claims.
Turning to the IAA’s consideration of s 5J(1) of the Act, section 5J(1) of the Act provides:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Relevant here is s 5J(1)(c) of the Act. The IAA determined that the applicant would face a real chance of harm for reasons of his religion and ethnicity in Parachinar (i.e., the applicant satisfied s 5J(1)(a) and (b) of the Act). However, that harm was “localised” to that area (i.e., Parachinar). The applicant’s chance of persecution for those same reasons in Islamabad was not taken to constitute a “real chance” and, accordingly, the applicant did not have “a well-founded fear of persecution”.
The issue here is whether the IAA correctly applied this legislative provision.
For the reasons that follow the Court has concluded that the IAA did correctly apply the relevant legislative provisions.
The IAA considered whether the applicant’s chance of harm for reasons of his religion or ethnicity would be real in Islamabad. The IAA referred to country information to conclude that the applicant did not face a real chance of harm from sectarian violence for reason of his ethnicity and religion in Islamabad (at [30]-[31]), he could freely practise his religion (at [32]), he would not face discrimination as a Pashtun (at [33]), he would be able to find work and subsist in Islamabad (at [34]) and he could obtain a national identity card without having to return to Parachinar (at [35]).
The IAA also considered whether the applicant would face harm as an asylum seeker returning from a Western country. The IAA considered information specific to Islamabad to assess the chance of the applicant facing harm for this reason and considered no such chance arose (at [38]-[41]).
Accordingly, the IAA considered not only the chance of harm in Islamabad for reason of his religion, ethnicity and violence, it also considered any other basis upon which the applicant might face harm in Islamabad (i.e., his profile as an asylum seeker). It also considered any other possible “serious harm” that could arise from living in Islamabad (for example, an inability to subsist).
The IAA’s approach to s 5J(1)(c) of the Act was entirely orthodox.
Finally, in relation to the IAA’s assessment of s 36(2B) of the Act, that section provides:
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
As the express language of s 36(2B)(a) of the Act states, an assessment of the “reasonableness” of relocation must be undertaken. That is, the question for the IAA under s 36(2B)(a) of the Act is whether it is reasonable, in the sense of practicable, for the applicant to relocate to Islamabad: SZATV v Minster for Immigration & Citizenship (2007) 233 CLR 18 at [24]. The particular circumstances that the applicant puts forward as a barrier to relocation should be considered. However, the IAA is not necessarily confined to those matters and may address other issues that may arise: MZANX v Minister for Immigration & Border Protection [2017] FCA 307 at [58].
Here, the IAA undertook a consideration of the “reasonableness” of the applicant’s relocation. It expressly acknowledged the submissions that the applicant made about why he could not relocate (at [48] and [49]).
Reading the IAA’s reasons as a whole (in particular [33]-[35], [41] and [48]-[49]), it is clear that the IAA addressed each of the applicant’s contentions about why he could not relocate to Islamabad and why it was unreasonable for him to do so.
The IAA addressed the applicant’s concerns about being identifiable (at [26] and [48]), about discrimination (at [33] and [48], about his ability to find work (at [34] and [49]) and about family support (at [34]).
The IAA’s analysis in this regard is forensic and without error. It cannot be said that the IAA incorrectly applied s 36(2B)(a) of the Act.
There is nothing to suggest that the IAA incorrectly applied any legal tests.
Ground 1 is dismissed.
Ground 2
Ground 2 provides:
The Immigration Assessment Authority did not afford me procedural fairness.
As noted above, the Act strictly outlines the IAA’s limited procedural fairness obligations. Those obligations are set out in Division 3 of Part 7AA of the Act.
Here, the IAA noted that the applicant’s migration agent had submitted that the applicant should be invited to an interview before the IAA as he was not legally represented when interviewed by the delegate. This was a request made for the IAA to exercise its power under s 473DC(3) of the Act to obtain “new information”.
The IAA declined to do so. It reasoned as follows:
8. The applicant’s representative also made submissions that the delegate did not explore the applicant’s claims of discrimination in the decision and which were raised in the TPV interview of 29 May 2018. He requested that the applicant be given another opportunity for hearing all his claims because he was not legally represented or afforded natural justice. I have considered the applicant’s request and note that he was not represented at the primary stage of the application process. However, he did provide comprehensive answers to the delegate’s questions at the TPV interview and I am satisfied that he had the opportunity to present his claims to the delegate. As discussed below, I have no concerns about the credibility of the applicant and his account of events in Pakistan; he provided a fulsome account of his claims at interview at the primary stage. I have decided not to interview the applicant.
9. The applicant’s representative has invited the IAA to put additional concerns to their office prior to determination. Overall I am satisfied that the applicant has given a credible account of his experiences in Pakistan to the best of his ability, given his young age and the passage of time, and I have exercised my discretion to review the matter based on the referred material and the applicant’s submission to the IAA without further correspondence with the applicant’s representative.
The IAA’s reasons for not seeking new information from the applicant were reasonable. The IAA is to determine the review on the papers: the Act, s 473DB. Any argument about the inadequacy of the hearing before the delegate was not accepted by the IAA. As the IAA noted, the applicant had provided comprehensive answers to the questions put to him. There was nothing to suggest that there was information that the IAA did not have, and which the applicant might have, that was necessary to complete the review: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
The issue on review (relocation) was a matter which had been explored by the delegate and which the applicant had already had an opportunity to address. The applicant’s submissions addressed that very issue. It is not the case here that there was an inadequacy identified by the migration agent (such as translation errors) which might suggest that a new interview was needed. The agent simply submitted that the applicant was denied natural justice because he did not have legal representation. That, the IAA determined, was an insufficient reason for it to exercise its power under s 473DC of the Act. The IAA was within its area of decisional freedom to proceed to determine the review “on the papers”.
There was no information that the IAA was required to put to the applicant under s 473DE of the Act and there are no certificates in the materials before the Court.
The IAA afforded the applicant procedural fairness as required by the Act. Further, the IAA’s conduct of the review (and the non-exercise of s 473DC(3) of the Act) was, contextually, entirely reasonable.
Ground 2 is dismissed.
CONCLUSION
The application for judicial review has failed to identify any jurisdictional error on the part of the IAA in its decision dated 26 October 2018. The Court has otherwise been unable to identify any jurisdictional error on the part of the IAA.
The application for judicial review filed on 22 November 2018 is, accordingly, dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 June 2021
0
17
0