SZSQF v Minister for Immigration

[2013] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 825

Catchwords:
MIGRATION – Application to restrain the Minister from relying upon a report and recommendation of an Independent Protection Assessor (Reviewer) – applicant claiming political persecution in Pakistan – applicant associated with organisations in Pakistan carrying out terrorist activities – whether the Reviewer erred in assuming that the association known to Australian authorities would not become known to the authorities in Pakistan considered.

Legislation:  
Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 36, 46A, 411

Minister for Immigration v Li [2013] HCA 18
Minister for Immigration v SZGUR (2011) 241 CLR 594

Minister for Immigration v SZIAI (2009) 259 ALR 429
Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZSQF

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MS S WINTERS IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 416 of 2013

Judgment of: Judge Driver

Hearing date: 16 July 2013

Delivered at: Sydney

Delivered on: 9 August 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr P M Knowles

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 416 of 2013

SZSQF

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MS S WINTERS IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a report and recommendation of an Independent Protection Assessor (Reviewer). The report and recommendation is dated 28 November 2012. The Reviewer found that the applicant does not meet the criteria for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (Migration Act). The Reviewer recommended that the applicant not be recognised as a person in respect of whom Australia has protection obligations. The applicant seeks a declaration of invalidity and an injunction restraining the Minister from relying upon the report and recommendation. The Reviewer, in the report, had reached the same conclusion as an earlier Protection Obligation Evaluation (POE) undertaken by an officer of the Minister’s Department (POE officer).

2. The following statement of background facts is derived from the submissions of the Minister filed on 9 July 2013.

3. The applicant arrived at Christmas Island by boat on 6 December 2011[1].

   [1] Court Book (CB) 105

4. On 4 January 2012 the applicant attended an entry interview conducted by an officer of the Minister’s Department[2].

   [2] CB 13

5. On 23 February 2012 the applicant made a statutory declaration[3].  The claims made in that document can be summarised as follows: 

   a)The applicant claimed to have been part of a Sunni militant group known as the Aloumar Brigade (also known as the Al Umar Brigade and formerly known as the Sipah-Sahaba Group) (SSP). The Al Umar Brigade was part of the Laskhar-e-Jungawi organisation.

   b)The Al Umar Brigade and/or the SSP was involved in fighting with Shias in the applicant’s home city.

   c)In April 2007, the applicant and other members of the Al Umar Brigade were involved in fighting against Shia groups.  He fired warning shots over the heads of a group of Shias.

   d)A few months later, a member of the Al Umar Brigade named Ghayour launched a suicide bomb attack.  Two weeks later the group’s leadership asked the applicant to be a suicide bomber. He did not want to do it so he fled to the city of Doaba.  After spending a year there, he travelled to Malaysia in 2009 and thereafter to Australia via Indonesia.

   e)The applicant fears returning to Pakistan because he will be harmed by Shia groups, supporters of Laskhar-e-Jungawi (because of his decision to abandon the group) and the Pakistan government.

   [3] CB 60-68

6. On 17 March 2012 the POE officer concluded that the applicant was not a person in respect of whom Australia owed protection obligations[4].

   [4] CB 104-114

7. The applicant’s case was then referred to the Reviewer for reconsideration.

The Reviewer’s recommendation

1. The Reviewer noted that the applicant had given inconsistent accounts of his involvement with the Al Umar Brigade. However, the Reviewer accepted that the applicant had been involved in the Al Umar Brigade, had participated in fighting in April 2007 and had left the group after being requested to be a suicide bomber[5].

   [5] CB 214 at [127]

2. The Reviewer found that the applicant was not at risk of harm from members of the Al Umar Group or related entities.  The Reviewer found that the Al Umar Brigade had disbanded.  There was no evidence that Eid Nazar, the only member of the group known to be alive, was aware the applicant had been asked to be a suicide bomber.  In any event, the applicant would be unlikely to come into contact with Eid Nazar if he relocated to another area in Pakistan[6].

   [6] CB 219 at [145]-[146]

3. The Reviewer found that no Shia person would recognise the applicant as a former member of the Al Umar Brigade.  Nor was it likely that he would face a risk of serious harm merely because he was a Sunni from his home district[7].

   [7] CB 22 at [148]-[149]

4. In relation to the risk of harm from the Pakistani authorities the Reviewer found that there was no reason to believe that the applicant had been identified by Pakistani authorities as a member of a militant group.  Nor was he at risk of harm because of his manner of departing Pakistan as the Reviewer found he left the country on a valid passport[8].

   [8] CB 220-221 at [152]-[153]

5. The Reviewer separately considered the applicant’s claims to “complementary protection”.  Although these claims were separately considered, they overlapped factually with the applicant’s claims to be a refugee.  They were dismissed for the same reasons as the refugee claims[9].

   [9] CB 221-222 at [155]-[160]

The judicial review application

1. These proceedings began with a judicial review application filed on 4 March 2013.  That application makes three assertions:

   1.The course that the Reviewer took was unfair as I was onshore.

   2.In course of natural justice, I’ve not been afforded RRT.

   3.The decision made is so unreasonable with all evidence provided that no reasonable person can make it.

2. The application also asserts procedural unfairness, a denial of natural justice and Wednesbury unreasonableness in general terms.

3. I have before me as evidence the court book filed on 2 April 2013.  I received as a submission the applicant’s affidavit filed on 15 April 2013.  The Minister has also filed written submissions.  The parties both made oral submissions at the trial of the matter on 16 July 2013. 

Consideration

Was there a want of procedural fairness?

1. I accept the Minister’s submission that there was no lack of procedural fairness in this case.

2. The only specific complaint of procedural unfairness raised by the applicant is that he was not afforded access to the Refugee Review Tribunal (Tribunal).

3. At the time of his arrival on 6 December 2011, Christmas Island was an “excised offshore place” within the meaning of s.5 of the Migration Act. At the time of his arrival the applicant became an “offshore entry person”[10].

   [10] Migration Act, s.5

4. As an offshore entry person, the applicant could not make a valid visa application even upon being brought to the Australian mainland[11].  He was not entitled to seek review in the Tribunal because, without a valid application, no decision was made to refuse the applicant a protection visa. In the absence of such refusal, there could be no “RRT-reviewable decision” capable of founding the jurisdiction of the Tribunal[12].

   [11] Migration Act, s.46A

   [12] Migration Act, s.411(1)(c)

5. The applicant therefore had no statutory entitlement to seek merits review in the Tribunal.  This does not amount to procedural unfairness. While the Reviewer was required to observe procedural fairness, the procedure of review involving Reviewers is not, of itself, procedurally unfair[13].

   [13] Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319

6. In his oral submissions the applicant claimed that the second hearing before the Reviewer was unfair, but that assertion related to what the applicant sees as confusion over the detail of his claims.  It appears from the Reviewer’s record of what occurred at that hearing that the applicant’s claims varied over time.  In particular, once he realised the potential seriousness of his claims of involvement with a terrorist organisation, the applicant sought to play down his role[14].  I see nothing unfair in the hearing opportunity afforded the applicant.

   [14] See [121] of the Reviewer’s report, CB 212

Was any decision of the Reviewer unreasonable?

1. I accept the Minister’s submission that nothing the Reviewer did was unreasonable.

2. The allegation of unreasonableness is unparticularised. The Reviewer’s reasoning is summarised above.  That reasoning cannot be described as illogical, irrational, disproportionate or lacking an “evident and intelligible justification”[15].  The Reviewer’s findings were open to her and cannot be described as unreasonable.

   [15] cf. Minister for Immigration v Li [2013] HCA 18 at [68], [74] and [76] per Hayne, Kiefel and Bell JJ

3. I also note that the Reviewer’s conclusion was influenced by the Reviewer’s assessment of the applicant’s credit[16]. These findings should not lightly be set aside as unreasonable; findings of credit are a matter for the Reviewer par excellence[17].

   [16] CB 211-213 at [115]-[126]

   [17] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J

The show cause order

1. On 3 May 2013 I ordered, pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the issue of whether the Reviewer erred in not seeking a security assessment of whether the applicant presents a security risk to Pakistan which would need to be disclosed should he be returned there. In making that order I was concerned that the Reviewer had accepted that the applicant was a member of, or associated with, an organisation or organisations responsible for terrorism in Pakistan. The Reviewer had reasoned at [151]-[152] that the applicant would not suffer harm from the Pakistani authorities because of that association or membership because the authorities would not know of it[18]. That reasoning assumed that Australian authorities would not disclose to the Pakistani authorities what had been learned about the applicant’s activities.  The purpose of the show cause order was to test whether the Reviewer was entitled to make that assumption.

   [18] CB 220-221

2. The Reviewer had no general duty to inquire. She was tasked to evaluate the applicant’s protection claims. Similarly, the Reviewer (like the Tribunal) had no duty to exercise, or consider exercising, whatever discretionary powers she may have to obtain information[19]. 

   [19] Minister for Immigration v SZGUR (2011) 241 CLR 594

3. In Minister for Immigration v SZIAI[20] at [25] in relation to the Tribunal, the High Court stated:

   It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.

   [20] (2009) 259 ALR 429

4. I accept the Minister’s submission that even if the Reviewer is considered to be under the same obligations as the Tribunal, no error is demonstrated in this case.  There are a number of reasons for this.

5. First, the security assessment would not have been an inquiry into a “critical fact”.  At its highest, such an assessment would involve the expression of an opinion, not an enquiry into a fact.

6. Secondly, a security assessment cannot be said to be an “obvious inquiry”. It is unclear what such an assessment would involve or who would conduct the inquiry.

7. Thirdly, there is no evidence that the security assessment could be “easily ascertained”.

8. Fourthly, there is nothing to suggest that the security assessment could have affected the Reviewer’s decision so as to provide a “sufficient link” to the outcome.  In particular, there is no evidence of what such a security report would have disclosed[21].  Further, even if a security assessment identified the applicant as a security risk to Pakistan, it would not follow that the Australian government would disclose that to the Pakistani government. 

   [21] SZIAI at [26]

9. I accept that the Reviewer was entitled to find, on the information before her, that the Pakistani authorities would be most unlikely to learn of the applicant’s activities with the Al Umar Brigade or related groups. As I have already noted, that reasoning assumed that no disclosure of the applicant’s activities would be made to the Pakistani authorities by Australian officials. There is no indication whether that assumption was based upon any positive knowledge. The Reviewer had considered whether Article 1F of the Refugees Convention applied to the applicant[22]. The Reviewer noted the applicant’s submission that it did not[23]. In her findings and reasons at [135][24] the Reviewer reasoned that it was unnecessary to make a decision on the application of Article 1F as the applicant did not meet the requirements of Article 1A(2).

   [22] See [76] of the Reviewer’s report at CB 198

   [23] See [84] of the Reviewer’s reasons at CB 200

   [24] CB 216-217

10. I accept the Minister’s submission that there was no obligation on the Reviewer to make further inquiries to test her assumption that the applicant’s activities would not be disclosed to the Pakistani authorities.  The result is that there is a necessary limitation on the report and recommendation provided to the Minister by the Reviewer.  If the assumption upon which the report and recommendation is based is false, then the Minister would not be able to rely upon it.  The Minister would presumably know of any disclosure required to be made (or intended to be made) to the Pakistani authorities.  The Minister would have to make his own assessment, independently of the report and recommendation, of whether the applicant could be returned to Pakistan if such disclosure were to be made or had been made.

Conclusion

1. I find that the report and recommendation of the Reviewer is free from reviewable legal error.  I will accordingly dismiss the application.

2. I will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 August 2013