ETO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-03-11|Before: Collier J

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 Before the Court is an appeal from a decision of the Federal Circuit Court in ETO18 v Minister for Home Affairs & Anor [2019] FCCA 2431, delivered on 30 August 2019, in which the primary Judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority). The Authority, on 10 September 2018, affirmed the earlier decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (then the Minister for Immigration and Border Protection) (Minister) made on 19 April 2018 to refuse the appellant's application for a protection visa under the Migration Act 1958 (Cth) (the Migration Act).

THE DECISION OF THE AUTHORITY 5 The appellant's claims before the Authority were as follows: The appellant has a wife and two sons with whom he remains in regular contact by phone and text message. His two daughters are now both deceased. The appellant's brothers and sisters, of which he has seven, remain in Pakistan. In 2012 the appellant began selling CDs and DVDs at the Saddar Bazaar in Peshawar. He had previously sold fruit and vegetables. After a few weeks, he received a threatening letter from an unknown person directing him to cease selling CDs and DVDs. He thought however that the letter was from a friend, and continued his business. About one week after receiving the letter, his shop was destroyed by a bomb. Other shopkeepers informed him the bomb was planted by the Taliban because he had not complied with the letter. Following the bombing, the appellant began a new CD/DVD business as a direct supplier. On a night in late 2012, whilst selling CDs and DVDs, the appellant was kidnapped and taken to a Taliban base in the mountains. The Taliban threatened him if he refused to assist them. The appellant claimed he was beaten several times. After approximately 20 days as a captive at the base, he escaped after discovering his cell door had been left unlocked. He fled the camp on foot, eventually finding a road where a passer-by picked him up and helped him to a friend's house in Swat. After 2 days in Swat he travelled home, where he stayed for a week whilst he made preparations to flee Pakistan. He departed Pakistan on or about 10 March 2013 via Karachi airport. 6 The Authority noted that the appellant provided new information and arguments in submissions provided on 17 May 2018. The Authority had regard in its decision to those arguments and submissions as referable to the appellant's claim about his fear of harm in Lahore. 7 New information provided by the appellant included a claim that the Taliban had continued to look for him on many occasions since his departure from Pakistan, the last time being in December 2017. The Authority observed at [5] of its reasons: Given these claimed events are said to pre-date the delegate's decision I consider the applicant could have raised these matters with the delegate prior to the decision being made and I am not satisfied as to s.473DD(b)(i). The applicant claims that since he arrived in Australia he has received multiple phone calls from family and friends about the Taliban looking for him yet he denied this at the SHEV interview and never raised it on any other occasion with the delegate in spite of significant opportunity to do so and being requested to put all his claims in full. In the circumstances I am not satisfied that the claim is credible personal information which was not previously known in accordance with s.473DD(b)(ii) and I have not considered this claim. 8 The appellant also produced news articles ranging in dates from 20 December 2016 to 14 March 2018, which he claimed demonstrated that Lahore was dangerous. The Authority formed the view at [6] of its reasons that because: (1) the news articles pre-dated the delegate's decision and could have been provided to the delegate prior to the delegate making the decision; and (2) the articles appeared to contain country information about the conditions in Lahore, rather than personal information about the appellant, neither limb of s 473DD(b) of the Migration Act was satisfied. Accordingly, the Authority declined to consider that new information. 9 The Authority at [9] of its reasons found that the appellant had misrepresented parts of his background. The appellant claimed to have been born and raised in Torwarsak in the Buner Distract of Khyber Pakhtunkhwa, Pakistan. However, evidence such as his birth certificate and certificate of domicile indicated he was originally from Lahore and has lived there for significant periods of his life. Despite considering the appellant to have closer ties with Lahore, the Authority noted at [10] of its reasons that it had assessed his risk of harm of returning to Swat in Khyber Pakhtunkhwa, being the area the appellant claims he would return to. 10 The Authority accepted at [12]-[14] of its reasons that the appellant operated a CD/DVD shop in Peshawar in 2012 and that it was bombed after the appellant received a threatening letter. It also accepted at [18] of its reasons that the appellant was abducted by the Taliban, which was trying to recruit him. The Authority at [19] of its reasons expressed some doubts about the way in which the appellant escaped, noting that it was "relatively uncomplicated and comprised of a serious [sic] of fortuitous events", but was willing to accept that he managed to escape by some means. 11 While the Authority at [28] of its reasons accepted that there was a "small but nevertheless real chance" of the appellant coming to the attention of the local Taliban should he return to Swat (where he was abducted) and thus a real chance of serious harm, the Authority was not satisfied the risk extended to all areas of Pakistan. The appellant did not accept the suggestion made to him in the SHEV interview that he could safely relocated to Lahore. He claimed that because the Taliban was everywhere, nowhere in Pakistan was safe. However, the Authority at [31] of its reasons referred to country information that indicated the Taliban was extremely decentralised, operating in a range of groups in its own tribal areas. Country information also indicated that the targets of militant attacks in Lahore tended to be people with an anti-Taliban or anti-Islamic profile who were involved in politics, security, law enforcement or journalism. The Authority was not satisfied that escaping from, and selling CDs/DVDs contrary to the direction of, the Taliban in Swat five years ago would earn the appellant a profile of any interest to the Taliban in Lahore. 12 The Authority noted that while Lahore was a majority-Punjabi city, other ethnic groups including Pashtuns had a significant presence. The appellant, as a Sunni Muslim, was amongst a religious majority in Khyber Pakhtunkhwa. While there was evidence that some Pashtuns in Lahore had indicated harassment by police and difficulty obtaining identification, there was also evidence that Lahore was safer for Pashtuns than other parts of the country. Further, while large numbers of Pashtuns had been arrested across Pakistan on suspicion of terrorism since the commencement of Operation Zarb-e-Azb, Pashtun community leaders were generally able to secure the release of those arrested without firm evidence of wrongdoing. On that basis, the Authority stated at [30] of its reasons that it considered the likelihood of harm to the appellant on the basis of ethnicity to be remote. 13 The Authority also rejected the appellant's claims that he would struggle to earn a living in Lahore. The Authority noted that the appellant claimed to speak Urdu, Pakistan's national language, and had demonstrated an adaptability to run businesses in different areas of Pakistan, including Lahore. Relatives of the appellant worked for the government in Lahore, and through such family relationships the appellant would have contacts in the area. The country information also indicated that there were better economic opportunities for employment in large urban areas, of which Lahore is one. Having considered that information, the Authority stated at [32] of its reasons that it was not satisfied the capacity of the appellant or his family to subsist would be threatened if he relocated to Lahore. 14 At [33] of its reasons the Authority concluded: Having carefully considered the applicant's personal characteristics and circumstances, and the range of other evidence before me, I am not satisfied that there is a real chance of harm to the applicant in Lahore, including on the basis of his Pashtun ethnicity, as a former CD/DVD salesman in Peshawar, as an escaped prisoner of the Taliban in Swat or as a result of the security situation in Lahore. 15 The Authority then considered whether the appellant faced any chance of harm as a returnee who had sought asylum and spent more than five years in the West. The information before the Authority did not indicate that the Taliban was alerted to the arrival of ordinary people returning from the West. The appellant would likely be questioned at the airport upon his return. However, the Authority was satisfied that the appellant's passport was likely genuine, and having left legally and having no profile of interest, the appellant would be released after questioning. Furthermore, DFAT had assessed returnees as not facing a significant risk of societal violence or discrimination as a result of migration attempts or living in the West. The Authority therefore determined at [36] of its reasons that it was not satisfied the appellant would face harm from Pakistani authorities, the Taliban or others as a result of spending time in the West or seeking asylum. 16 As the Authority had determined that the appellant had no well-founded fear of persecution, it concluded that the appellant did not meet the refugee criteria in s 5H(1) of the Migration Act. Accordingly, the appellant did not meet the criteria for a protection visa under s 36(2)(a) of the Migration Act. 17 The Authority referred to s 36(2A) of the Migration Act. It noted at [40] of its reasons that it had found that the appellant faced a real chance of serious harm if he returned to Peshawar, Swat, the surrounding areas or, generally, Khyber Pakhtunkhwa by reason of his abduction by the local Taliban for selling CDs and DVDs. However, by reference to s 36(2B) of the Migration Act the Authority at [41] of its reasons stated: As set out above, I have found that there is not a real chance that the applicant will face any harm on his return to Lahore as a Sunni Pashtun, a former CD/DVD seller, as a Taliban escapee or as a person returning to Pakistan after living in Australia, a western country, for more than five years, or as a result of the security situation in Lahore or as a result of any combination of these matters. On the same factual findings, I am similarly not satisfied that the applicant faces a real risk of suffering any harm on those grounds, including significant harm, should he be returned to Lahore. 18 Accordingly, the Authority determined at [45] of its reasons that the appellant did not meet the criteria in s 36(2)(aa) of the Migration Act. 19 It followed that the Authority affirmed the delegate's decision not to grant the appellant a protection visa.

DECISION OF THE FEDERAL CIRCUIT COURT 20 On 14 September 2018 the appellant sought review of the decision of the Authority in the Federal Circuit Court of Australia. The appellant filed an amended application for judicial review on 26 April 2019 in the following terms: (1) The IAA failed to apply the correct test in determining whether to consider new information, in that it did not correctly understand or apply s 473DD(b)(i) having regard to CSR16 v Minister for Immigration [2018] FCA 474. (2) The IAA failed to consider the applicant's submission, particularly in relation to the reasonableness of relocation made to the IAA. 21 In relation to the first ground of review, the primary Judge noted that the reference to s 473DD(b)(i) appeared to be a typographical error. The course of argument before the primary Judge proceeded on the basis that it was an intended reference to s 473DD(b)(ii). 22 The primary Judge said at [16]: First, the IAA found that the new information was something which was known to the applicant, and which could have been brought to the attention of the delegate, prior to the handing down of the delegate's decision. Second, the first respondent, by Mr Psaltis of Counsel, submitted that when [5] of the Authority's reasons are read in context, the Authority must be taken to have not known of the matters which constituted the new information which was contained in the 17 May 2018 submission. There is force in that submission. Nowhere in [5] is there any acknowledgement by the Authority that it was privy to any of the new information put before it by the applicant. Had it been privy to the information the subject of the applicant's new claims, one would have expected the Authority to have said so. There is no substance to the applicant's submission that the Authority misconceived its duty to properly consider whether the new information was, or was not, credible personal information which was not previously known to either it or the applicant. The IAA considered the information and found that it was not credible personal information. 23 The primary Judge noted that the Authority, in arriving at its decision, was not required to refer to every piece of evidence and contention made by the appellant nor should its decision be examined "with an eye keenly attuned to error": Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47]. His Honour also stated at [20] that it could not be said that no other rational or logical decision maker could have made the same decision as the Authority: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]. 24 For those reasons, the primary Judge determined at [16] and [18] that there was no substance to the first ground of review. 25 In relation to the second ground of review, the primary Judge noted that the relevant factual finding of the Authority was at [33] of its reasons. The primary Judge determined at [25] that, based on the Authority's findings and comments at [26]-[32] of its decision, the Authority was entitled to find that there was no basis for a well-founded fear of persecution by the appellant should he return to Lahore. 26 The primary Judge concluded at [26]-[28] that the appellant had failed to demonstrate jurisdictional error on the part of the Authority as: there was no evidence the Authority failed to make an obvious enquiry about a critical fact when analysing relevant matters to its conclusion; and the decision of the Authority could not be considered legally unreasonable or lacking an evident and intelligible justification.

APPEAL TO THE FEDERAL COURT 27 The appellant filed a notice of appeal from the Federal Circuit Court on 25 September 2019. The appellant relied on the following grounds of appeal: The Federal Circuit Court was wrong not to accept that: (1) The IAA failed to apply the correct test in determining whether to consider new information, in that it did not correctly understand or apply s 473DD(b)(i) having regard to CSR16 v Minister for Immigration [2018] FCA 474. (2) The IAA failed to consider the applicant's submission, particularly in relation to the reasonableness of relocation made to the IAA. 28 The appellant was not represented at the hearing and appeared with the assistance of an interpreter.

Application for adjournment 29 During the course of the hearing, the appellant made an oral application for the adjournment of the hearing on the following grounds: The appellant's previous legal representative had withdrawn in January 2020 as there were several thousand dollars in outstanding bills unpaid by the appellant. The appellant therefore sought an adjournment to obtain money to pay his legal representative, who could then assist him with the appeal. The appellant had provided all the relevant documents to his prior legal representative, who had not returned them to him. 30 That application was opposed by the first respondent on the basis that: impecuniosity or lack of access to legal representation is not alone a sufficient basis to adjourn an appeal; and the appellant had access to relevant documents, as the solicitors for the first respondent had sent the appellant several emails in February 2020 enclosing material relevant to the appeal (including the appeal book). 31 I refused to grant the appellant's oral application for an adjournment of the hearing because: No application for adjournment had been made until the actual hearing. Lateness of an adjournment application is a relevant factor in the determination of such an application, because of the potential implications for just and efficient resolution of the proceedings: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Lack of access to a lawyer, whilst unfortunate, is not of itself a sufficient basis on which to grant an adjournment: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19]. The appellant had submitted during the hearing that he was not earning enough money to enable him to pay the outstanding fees of his prior lawyer, and that he could not afford to hire another lawyer. These factors suggested a low likelihood that the appellant would be in a position in the near future to brief legal representation. While the appellant submitted that he had given all his documents to his former lawyer and those documents had not been returned, it was not in dispute that the solicitors for the Minister had provided the appellant with copies of those documents (in both his own language and English) and other documents relevant to the appeal.

Substantive appeal 32 The appellant did not file written submissions in support of his notice of appeal. His oral submissions at the hearing may be summarised as follows: The appellant feared for his life if he returned to Pakistan. His family were in hiding and the house where they lived had been fired upon. His children were not in school because it was not safe for them to go, and his family feared they would be kidnapped at school. He had been kidnapped by the Taliban. Once the Taliban named a person as being against the Taliban, they would not let that person or their family live. The Taliban was searching for him and his family. His family circumstances were such that it was difficult for him to be away from his family. 33 The Minister filed written submissions and was represented by Mr Psaltis of Counsel at the hearing. The written submissions responded to the appellant's submissions before the Federal Circuit Court, noting that the grounds before this Court replicated the grounds before the primary Judge. Mr Psaltis of Counsel made further oral submissions at the hearing responding to the oral submissions of the appellant and the merits of the second ground of appeal.

First ground of appeal 34 Turning to the first ground of appeal - which repeated the first ground of review before the primary Judge - I note the observation of his Honour that the relevant provision for consideration was not s 473DD (b)(i), but rather s 473DD (b)(ii). His Honour at [10] noted that both parties before him had proceeded on that basis. I understand that the parties are similarly proceeding on that basis before me. 35 Section 473DD(b)(ii) 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. (emphasis added) 36 In this ground of appeal the appellant specifically referred to the decision of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. In that case the visa applicant had similarly asserted that the Judge at first instance had erred by not finding that the Authority misapplied the statutory criteria for the consideration of "new information" provided by a visa applicant as set out in s 473DD(b)(ii). Justice Bromberg in that case observed: [37] The primary judge resolved the question of whether the Authority had erred in relation to the application of the s 473DD(b)(ii) criteria by concluding (at [63]) that, once the Authority determined that it was not satisfied that the information fell within s 473DD(b)(i), "it was not necessary for the [Authority] to consider the elements of subsection (b)(ii)". The Minister did not defend the primary judge's approach. Indeed, the Minister conceded that the primary judge's construction was erroneous. With respect to the primary judge, so much must be accepted because properly understood the two limbs of s 473DD(b) are alternatives… [38] Despite accepting the erroneous approach taken by the primary judge, the Minister nevertheless contended that the Authority had not relevantly engaged in jurisdictional error. The Minister contended that pursuant to s 473DD(b)(ii) the Authority must form an assessment of whether the "new information" is "credible" before it is permitted to then consider that information for the purposes of making its ultimate decision on the review. In making that assessment, the Minister contended that the Authority was entitled to take into account the "review material". That was what the Authority did here and, by reference to the fact that a claim of the kind raised by the "new information" had never previously been advanced by the appellant, the Authority was entitled to conclude that the "new information" was not "credible personal information" within the meaning of the s 473DD(b)(ii) criteria. 37 Justice Bromberg continued: [41] In my view all that the "credible" element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the "new information" is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the "new information" is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether "new information" should be received by the Authority so that it may be considered at the deliberative stage. [42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word "credible" is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is "evidently not credible" (VEAL [sic] v Minister for Immigration & Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria. [43] The Authority determined that the "new information" that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the "new information" was true when all that the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the new information is capable of being believed at the deliberative stage of the Authority's review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration & Border Protection; Te Puia v Minister for Immigration & Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ). [44] In failing to identify that error, the primary judge erred. Ground 2 of the appeal is upheld. (emphasis added) 38 The primary Judge in the present case gave detailed consideration to the Authority's application of s 473DD(b)(ii), and the reasoning of Bromberg J in CSR16 [2018] FCA 474. His Honour inferred that the Authority had had due regard to relevant principle as explained in CSR16 [2018] FCA 474 at [42]. His Honour continued: The applicant also submitted that the IAA failed to lawfully consider the applicant's request because it had not assessed whether the new personal information put forward by the applicant was credible personal information or not. There is no substance to such submission. The Authority clearly found that the new information was not credible. In doing so, it had set out in detail its reasons for so finding, namely that the applicant had previously denied at his SHEV interview that the Taliban had been looking for him, as well as pointing out that the applicant had never raised such issue on any other occasion with the delegate in spite of him having had the opportunity to do so in circumstances where he had been requested to put all of his claims to the delegate 'in full'. 39 It is unclear to me from the first ground of appeal on what basis the appellant claims that the Authority failed to apply the correct test in determining whether to consider new information, or failed to correctly apply s 473DD(b)(ii). It is plain from the decision of the Authority at [5] that the Authority did not accept as credible the appellant's claims that the Taliban continued to look for him, in circumstances where: The appellant had denied this at the SHEV interview; and The appellant had never raised this issue on any other occasion with the delegate in spite of significant opportunity to do so, and being requested to put all his claims in full. 40 As the Minister properly submitted, the Authority's evaluation of lack of credibility of information in this case can be contrasted with the findings in CSR16 [2018] FCA 474 where the Authority had formed a view of the truth of the visa applicant's claims. 41 No error is apparent in respect of the findings of the primary Judge concerning s 473DD(b)(ii) of the Migration Act. In my view the first ground of appeal has no merit.

Second ground of appeal 42 In relation to the second ground of appeal, the Authority at [29]-[32] of its reasons examined whether the appellant would have a well-founded fear of persecution in all areas of Pakistan, and gave particular consideration to whether the appellant could safely relocate to Lahore. I note in particular the following findings of the Authority: Lahore had a population of around 10 million people with significant numbers of ethnic groups; The security situation in Lahore tended to be better than other areas of Pakistan; Large cities such as Lahore had ethnically and religiously diverse population and offered a level of anonymity for people seeking refuge from violence by non-state actors; Representatives of the Pashtun community told DFAT that Lahore was safer for Pashtuns than other parts of the country; There had been incidents where members of the Pashtun community had claimed to have been harassed by police and security forces; In the SHEV interview it was put to the appellant that he could safely relocate to Lahore, and the appellant claimed that nowhere in Pakistan was safe because the Taliban were everywhere; The Taliban was composed of a range of groups, was extremely decentralized and tended to operate in its own tribal areas; The Authority was not satisfied the Taliban would track the appellant down in Lahore, as he had very little profile to speak of, and while he might be of interest to his previous abductors, he would not be of any interest to the Taliban in Lahore; The targets of militant attacks in the Punjab were reported to be people who were considered to have an anti-Taliban or anti-Islamic profile or belonged to minority groups which were often the targets of militant attacks and sectarian violence; Although the appellant had raised a concern that he had not worked in Lahore since 2008 and did not speak Punjabi, nonetheless the appellant claimed to speak both Urdu and English, had demonstrated an adaptability to run various businesses in Lahore, Peshawar and Swat, and had found employment during his time in Australia; and DFAT assessed there were better economic opportunities for employment and business in large urban centres such as Lahore. 43 The Authority concluded: 32. …I see no basis on which the applicant would be prevented from establishing himself in Lahore and I consider that he will still have contacts in Lahore through [family members]. I am not satisfied that if the applicant relocates to Lahore his (and his family's) capacity to subsist will be threatened. 33. Having carefully considered the applicant's personal characteristics and circumstances, and the range of other evidence before me, I am not satisfied that there is a real chance of harm to the applicant in Lahore, including on the basis of his Pashtun ethnicity, as a former CD/DVD salesman in Peshawar, as escaped prisoner of the Taliban in Swat or as a result of the security situation in Lahore. 44 The primary Judge at [21]-[25] examined the claim of the appellant that the Authority had failed to properly engage in a consideration of his claims about the reasonableness of relocation to Lahore. His Honour concluded at [26] that it could not be said that the Authority, when analysing matters of relevance before it in respect of such finding, failed to make an obvious enquiry about a critical fact. 45 In my view this conclusion of the primary Judge was open to his Honour. In light of the detailed consideration by the Authority of the reasonableness of the appellant relocating to Lahore, I am also satisfied that it was open to the Authority to find that it was reasonable for the appellant to so relocate. 46 The second ground of appeal has no merit.

Conclusion 47 The appropriate order is that the appeal be dismissed, with costs to follow the event. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Migration Act 1958(Cth)ss 5H(1), 5J, 36(2)(a), 36(2)(aa), 36(2A), 36(2B), 473CA, 473DD, 474(1), 476, Pt

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