GSR18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 723

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GSR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 723

File number(s):

SYG 3634 of 2018

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

13 August 2024

Catchwords:

 MIGRATION – Immigration Assessment Authority –Safe Haven Enterprise Visa (SHEV) (Class XE) – Application for judicial review – Whether the Tribunal failed to complete its review function – Whether the applicant satisfied the relevant decision maker – Application dismissed.

Legislation:

 Migration Act 1958 (Cth) ss 5H (1), 5J, 36(2)(a), 36(2) (aa), 36(2A), 36(2A)(c), 36(2A)(d) 36(2A)(e), 473CA

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

SZURK v Minister for Immigration and Anor [2015] FCCA 472

Division:

Division 2 General Federal Law

Number of paragraphs:

41

Date of last submission/s:

6 August 2024

Date of hearing:

8 July 2024

Place:

Parramatta

Counsel for the Applicant:

Mr Bodisco

Solicitor for the Applicant:

Abu Legal

Counsel for the Respondents:

Mr Johnson

Solicitor for the Respondents:

HWL Ebsworth

ORDERS

SYG 3634 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GSR18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	13 AUGUST 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs 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 D HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Pakistan. He arrived in Australia in June 2013 as an irregular maritime arrival.

2. The applicant applied for a Safe Haven Enterprise Visa (“SHEV”) (Class XE) on 24 April 2017. In his application, the applicant claimed to fear harm if he was returned to Pakistan for reasons of his Pashtun ethnicity and Sunni religion.

3. A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Delegate”) refused to grant the applicant a SHEV on 12 November 2018.

4. The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review pursuant to s 473CA of the Migration Act 1958 (Cth) (“the Act”). On 13 December 2018, the Authority affirmed the decision under review.

5. The applicant now seeks judicial review of the decision in this Court. For the reasons set out below the application must be dismissed.

   IMMIGRATION ASSESSMENT AUTHORITY’S DECISION:

6. At [5], the Authority summarised the applicant’s claims as follows.

   •He was born on 31 December 1987 in Quetta. He is a Sunni Muslim of Pashtun ethnicity. His parents, four brothers and two sisters still live in Quetta. Hs wife also lives with his family.

   •Around 2012, he was getting fruit at a market when a bomb exploded. Whilst he was not injured, some people died in the explosion and he witnessed the violent aftermath which caused him to be shocked and have nightmares.

   •Numerous terrorist groups operate in his home area and attacks are frequent. He left Pakistan as it had become too unsafe for him to remain there as he was in danger from random attacks in Quetta and surrounding areas.

   •It is clear that the targets are Pashtuns like himself because Pashtuns are stereotyped as terrorists and considered lower class. Around August 2016, the Taliban set off a bomb at Quetta's civil hospital which killed approximately 70 people, most of whom were Pashtun. The Taliban took responsibility for the attack.

   •He fears that if he returns to Pakistan he will be killed by the Taliban or Sunni extremists or sent to prison because of his Pashtun ethnicity.

7. At [6], the Authority noted new claims raised by the applicant at a SHEV interview on 12 September 2018:

   •His family moved to a new house a while ago where they own four/five shops which they rent out. Earlier this year one of the shop-keepers took the applicant’s nephew into one of the shops and sexually abused him.

   •He will be in danger as a returnee, from a western country.

8. Further there is a sentence on his SHEV application that relates to the Taliban making attempts on the applicant’s life when he worked as a travel agent. The Authority considered this to be a “cut and paste” error from a different application not related to the applicant’s current claim.

9. From [8] the Authority assessed the applicant’s refugee claims in accordance with s 5H(1) of the Act and summarised the components for a finding of “well-founded fear of persecution” under s 5J.

10. At [10]-[12], the Authority assessed the applicant’s identity and was satisfied that he is of Pashtun ethnicity, Sunni religion and is a Pakistani national, with Pakistan being the receiving country.

11. In respect of the applicant’s Pashtun ethnicity and Sunni religion, the applicant claims that his fear of returning to Quetta stems from a bomb blast which he witnessed in 2012 or 2013, which the Taliban took responsibility for. The applicant does not claim to have been personally targeted or harmed.

12. The Department of Foreign Affairs and Trade (DFAT) country information verifies the applicant’s claims. At [16]-[20] the Authority refers to a DFAT report to verify the likelihood of the applicant witnessing a bombing in 2012. This report found that despite military and law-enforcement efforts, bombings by terrorist groups were frequent, and accepted that the applicant may have witnessed this. Nonetheless, at [21], the report noted that despite the bombings showing signs of increase as of 2018, they are primarily targeting the Hazara Shia population, of which the applicant is not a member.

13. The Authority also accepted at [21] that the sexual assault of the applicant’s nephew did happen, however noted that it appears to have been an isolated incident which had no connection to the applicant, and that “his family’s life was otherwise good”.

14. At [22]-[24], the Authority addressed the applicants claim that regardless of his religion, he would be profiled alongside other Pashtun’s due to his physical appearance and accent, increasing the likelihood of either terrorist attack or law-enforcement discrimination. The Authority again, referenced the DFAT report, which found that Pashtun’s are the second-largest ethnic population in Pakistan. The Authority was ultimately satisfied that there was not enough evidence to suggest that Pashtun’s are targeted by terror groups or discriminated by law-enforcement, and that the applicant had never been unlawfully detained, questioned or physically mistreated by law-enforcement.  The Authority considered the chances of this occurring in the future to be remote.

15. In regard to the applicant’s fear of returning to Pakistan after having had spent time in the West, [25]-[26], the Authority took the treatment of returnees into Pakistan into consideration, noting that it is commonplace for individuals without proper travel documentation to attract attention. While the applicant claims to have had his passport stolen upon arrival into Australia, the DFAT report suggests that as long as an individual has not committed any crimes (which the applicant has not), if they are pulled aside upon return for questioning, they will likely be released after several hours. The Authority also noted that the applicant claimed to have another valid passport which he can obtain from his brother to avoid this attention altogether.

16. At [27], the Authority referred to the DFAT report to note that there is not enough prejudice towards Western countries in Pakistan to indicate that returnees that integrate from Western countries would suffer any additional risk of discrimination or violence. The Authority also indicated that there was no information to suggest that the Taliban would be notified of the applicant’s arrival. 

17. The applicant’s quality of life upon return to Pakistan was assessed at [28], where it was noted that there is enough evidence to suggest the applicant’s family is self-sufficient financially (owning multiple businesses) to accommodate the applicant’s return. Further, the applicant claimed to have work experience and possessed enough transferrable skills to find some form of employment.

18. The Authority concluded at [29] that any hardship the applicant may suffer upon his return to Pakistan was not enough to suggest that genuine harm will come to him. Thus at [30] the Authority found that the applicant does not meet the requirements for the definition of a refugee under s 5H(1) of the Act.

19. At [32], the Authority outlined the criteria for ‘significant harm’ under s 36(2A) of the Act, and reaffirmed at [33]-[34] that for the reasons outlined above, there is no real chance that the applicant will suffer any real or significant harm upon his return to Pakistan. As such, the applicant should be returned to Pakistan.

20. In these circumstances, the Authority affirmed the decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

21. The applicant’s grounds of review are contained in an Amended Originating Application filed in Court on the morning of the hearing on 8 July 2024, together with written submissions addressing the new ground. A single ground of judicial review is now relied upon as follows:

    1.The IAA failed to complete the task of jurisdiction it embarked upon;

    Particulars:

    The IAA failed to deal with a claim that is squarely raised on the evidence, namely that he would face harm (under the complimentary protection provisions) owing to:

    a.   The mental trauma he had experienced as a result of surviving a terrorist bomb blast prior to his departure;

    b.   The symptomology he reported consistent with Post Traumatic Stress Disorder;

    c.   The lack of mental health services in Pakistan; and

    d.   His exposure to a security situation that includes documented insurgent and sectarian violence, including an ‘increase in the frequency and severity of terrorist attacks across Pakistan since later 2016’.

    THE APPLICANT’S SUBMISSIONS

22. In written submissions, also filed with the Court on the morning of the final hearing, Counsel for the applicant reiterated the history of the applicant prior to coming to Australia whereby the applicant was close by a bomb blast that occurred at a local market.  The applicant claimed that the shockwave from the bomb knocked him over although he was not wounded.

23. The applicant claimed that he could not go back to Pakistan because of fear. Counsel for the applicant submitted that the applicant was suffering from symptomology consistent with the express symptoms of post-traumatic stress disorder, although he did not expressly raise this claim.

24. Reliance was placed on the decision of Driver J in SZURK v Minister for Immigration and Anor [2015] FCCA 472 at [48] where His Honour held that the applicant had been the subject of criminal extortion activity in Colombo, Sri Lanka. His Honour found that the claim squarely arose on the material before the Tribunal and the Tribunal failed to consider whether or not the applicant faced a real chance of significant harm from lawless elements because of her age, disability and lack of familial support which may have placed her at greater risk than the Sri Lankan community generally. Accordingly, the Tribunal did not complete its review function.

25. It was submitted that this was not just a failure of natural justice, it was a failure to conduct review as required by the Act; (see: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [14]).

26. There is authority for the proposition that the Tribunal or Authority is not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts raises a case on a basis not articulated by the applicant; (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at [63]).

27. Given the very late change in the ground of review, leave was granted for the respondent to file additional submissions and for a right of reply by the applicant.

28. It was submitted that the applicant’s claim turns on more than simply the withdrawal of health services that the applicant would experience should he return to Pakistan. In addition, he cannot work due to patterns of avoidance he has experienced in recovering from the experience (presumably this refers to the bombing, claims that he has no income support, and that he may suffer from further exposure to insurgent attacks). The Court notes at this point that the issue of health services was specifically mentioned by the Authority at [28] noting that health services are generally free and accessible to all Pakistanis in urban areas. The Authority goes on to say that the applicant does not claim to have any health conditions, but the Authority was satisfied that the applicant could access health services in Quetta if required.

    THE FIRST RESPONDENT’S SUBMISSIONS

29. The respondent submits that there is no clarity in the applicant’s ground, that being that the Authority failed to complete its jurisdictional task and complete the review required of it. What may be accepted is that the Authority is required to take into account the applicant’s claims for protection when performing its review. The Authority’s assessment need only be based on claims that are expressly advanced or which arise “squarely” on the materials; (see: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176).

30. There may be an error by the Authority if it fails to respond to a substantial, clearly articulated argument relying upon established facts; (see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088).

31. The Authority addressed the applicant’s claims as they arose in his SHEV application and interview and considered all his protection claims in the context of s 36(2)(a) and (aa) of the Act.

32. The Authority had also considered the claim that the Taliban had made an attempt on the applicant’s life during his time as a travel agent. This claim was not developed or mentioned in his SHEV interview, and it was not the subject of any submissions or information given to the Authority. The respondent submits that the Authority had regard to the applicants claim but found that there was no credible evidence that the applicant would attract the attention of insurgents or extremist Sunni sectarian groups in Pakistan. The Authority did not need to substantively address the applicant’s claim of past harm by the Taliban.

33. In supplementary written submissions, it was submitted that the suggested lack of medical services or access to medical treatment does not give rise to a claim of a risk of significant harm as defined in s 36(2A)(c), (d) or (e) if this was due to a lack of resources as compared to an intent to harm the applicant; (see: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [26]).

    CONSIDERATION

34. The sole ground of judicial review is now an assertion that the Authority failed to consider claims that squarely arose on the evidence.  A fair reading of the Authority decision record indicates the Authority noted and dealt with all matters that were ‘squarely raised’ by the applicant in support of his protection visa application. These are set out in detail in the decision record and are properly addressed as to why they do not support a finding of why the applicant is in need of protection.

35. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

36. It is well established that the Authority is not required to accept uncritically any, and all claims made by an applicant; (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

37. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]).

38. The Authority accepted much of the applicant’s claims, including that he had been a witness to a bombing and that his nephew had been sexually assaulted.  At [21] the Authority found that this was an isolated event and unconnected to the applicant. By reference to country information, the Authority concluded that the applicant would not be at risk upon return based on his profile, Pashtun identity or any other reason. This finding was open to the Authority based on the evidence that was before it and for the reasons it gave. 

39. No evidence was put to the Authority, or indeed the Court other than from the Bar Table that the applicant was suffering from any psychological condition, including PTSD. The Authority expressly accepted the applicant was in close proximity to a bomb blast. It expressly considered the risk of significant harm to the applicant upon return but found the risks remote. The Court does not accept that the claim that the applicant suffers from an undiagnosed medial condition such as PTSD was squarely raised before the Authority. It was new material raised for the first time during the proceedings before this Court. To consider that claim would require the Court to venture into impermissible merits review.

40. The issue of a claimed lack of financial support was comprehensively dealt with at [28], where the Authority found the applicant had a financially self-sufficient extended family which would ease the applicant’s reintegration and that he had significant work experience which would make it easier for him to obtain work in Pakistan.

    CONCLUSION

41. The Court is satisfied that the Authority clearly dealt with all matters that were squarely raised before it. The sole ground of judicial review has no merit. The application must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:HM

Dated:       13 August 2024