CZO18 v Minister for Home Affairs & Anor [2019] FCCA 243 (30 January 2019)

Last Updated: 17 April 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZO18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 243

Catchwords: Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation: Migration Act 1958 (Cth), s.473CB

Hossain v the Minister For Immigration & Border Protection [2018] HCA 34 AKK17 v The Minister for Immigration [2017] FCCA 2486

Applicant:

CZO18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 560 of 2018

Judgment of:

Judge Vasta

Hearing date:

30 January 2019

Date of Last Submission:

30 January 2019

Delivered at:

Brisbane

Delivered on:

30 January 2019

REPRESENTATION

Applicant appearing in person

Counsel for the Respondent:

Mr S. Lee

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) That the Application filed on 8 June 2018 is dismissed.
(2) That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRIBANE

No. BRG 560 of 2018

CZO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 May 2018 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant CZO18 a protection visa. After this decision was delivered on 8 June 2018 CZO18 filed an application for review in this Court.
2. In short compass, the Applicant’s claims are that he was from a small village in Tangi Tehsil in the Charsadda district in the Khyber province. He is a Sunni Muslim of Pashtun ethnicity. He said in approximately 2009 or 2010, the militant group Tehrik-e-Taliban Pakistan (TTP) or Taliban, were recruiting young men in his area.
3. He said that some men from his area joined the Taliban because they were given wages or promised rewards of a religious nature, and those who refused to join were taken away and beaten. He said that he saw the Taliban kill people who refused to join them.
4. He said in this period the Taliban called his older brother numerous times over the course of several months demanding that the Applicant and his brother join the Taliban.
5. A group of Taliban members then kidnapped the Applicant from outside his home, and detained him in a location about six hours drive from his home for approximately one month. During this time he said that members of the Taliban beat him often, and spoke to him three or four times each day, trying to persuade him to join them. He escaped when someone forgot to lock the door, or they left the key in the room, and he escaped. He said he was able to return to live in his family home with his brother for some time.
6. At some point he moved to his aunt’s home, also in the Tangi area, to avoid the Taliban. During the years following his escape, the Taliban frequently telephoned his brother looking for him, and they threatened to kill him if he did not join them. He decided to leave Pakistan in 2013 when he had enough money to do so.
7. He ended up coming to this country by boat as an unlawful maritime arrival in April of 2013, arriving here on ANZAC Day 2013. He was interviewed when he first arrived, and simply said that he claimed a fear of persecution by the Taliban, who abducted him in the year 2000.
8. The Applicant was able to apply for a safe haven enterprise visa, and had to make that application before he was interviewed. In the application he now claimed that the date of his abduction was 2009/2010, rather than 2000. His application had a copy of his national identity card as well.
9. He was interviewed on 30 May 2017. After that interview the migration agent for the Applicant hand-delivered to the department an original Pakistani driver’s licence, and a copy of a family registration certificate.
10. On 3 August 2017 the delegate refused to give the Applicant a safe haven enterprise visa.
11. The matter, being a fast track decision, was referred to the IAA. There was some further material submitted to the IAA by the Applicant through his migration agent, but the IAA ended up finding that it that there were no exceptional circumstances for looking at that material. The IAA had gone through, very thoroughly, all of the claims that the Applicant had made. The Applicant had been inconsistent on a number of occasions.
12. Certainly when first talking about his passport in his written application, he said that he had been able to obtain a false passport from a people smuggler, but during his SHEV interview he said that he applied for and obtained a passport himself in Peshawar.
13. The difference was put to him by the delegate, but he said he did not know about it. The IAA found it difficult to accept that the Applicant did not know the difference. The IAA looked at some of the descriptions of his life in Pakistan and found he was very inconsistent about where it was that he lived, and in what order he lived in those places, and for how long he had lived there.
14. The IAA said at paragraph 23:
    • While each of the issues discussed concerning the applicant’s evidence is relatively minor, taken as a whole, they lead me to question whether the applicant has been entirely forthcoming in his evidence concerning his identity and life in Pakistan.
15. The IAA then looked at the claim about being kidnapped and held by the Taliban. The IAA noted the change in the dates from 2000 to now 2009/2010. The Applicant said to the delegate that he had made an error, because he was confused about dates.
16. The IAA found that given the dates differ by nine or 10 years it was difficult to accept that any confusion regarding dates could have led the Applicant to have made such a significant error. It is a significant error because the TTP officially came into existence around 2007, though it seems that the origins of the group were as a result of the NATO and US operations in Afghanistan in 2001.
17. It makes it highly unlikely that the Applicant could have ever been kidnapped by the Taliban in 2000, as he indicated in the two interviews he had upon arrival.
18. The IAA found that it was likely that these claims were amended in regard to add to their plausibility, or to strengthen his protection claims. The Applicant’s evidence regarding his targeting by the Taliban also was inconsistent. He had first said that the Taliban had targeted his brother. Then it was that the Taliban used to telephone the older brother and demand that the Applicant and the brother join them.
19. However, during the interview he said the Taliban were interested only in him, because they did not take eldest sons from families, and his older brothers were too skinny and not in sufficiently good physical condition.
20. Then the Applicant’s story about having escaped seemed also to be inconsistent. He, at one stage, said that he ran for three hours and then recognised where he was and was able to make his way back to Tangi, and that was by walking another six hours and then using a local bus.
21. Whereas, when he was interviewed he said he escaped from captivity one night when someone left the key to the door in his room. He ran into the jungle and after running or walking for about three hours he came to a road where he saw a car and flagged it down. The driver agreed to drive him to Tangi on the basis that the Applicant’s brother would pay him on their arrival, and that it was a six hour drive. Whilst there may be reasons that the Applicant would have difficulties with the tale, those reasons were not considered by the IAA to adequately account for the extent of the variation in his tale.
22. The IAA found it difficult to understand why it was that the Applicant said that the Taliban would not recruit the oldest male children from the families. There did not seem to be any real necessity for the Taliban to have people who have significant physical strength. The country information was that the recruiting of people for the Taliban was voluntary. It did not gel with the Applicant’s story that he was forcibly recruited. There was little independent evidence before the IAA to suggest that the Taliban have forcibly recruited adult males in areas not under their control.
23. The IAA did not accept the Applicant was a subject of any attempt by the Taliban to forcibly recruit him, and therefore, did not accept the corollary claims that the Taliban were threatening his sister’s husband because of him.
24. The Applicant claimed that if he returned to Pakistan the Taliban or other groups may target him, because he has lived in a Western country for five years. The IAA looked at country information and ended up coming to the conclusion there was not an objective fear of serious harm because of those matters.
25. At paragraph 47 the IAA said this.
    • I have concluded there is not a real chance of any other harm to the applicant in the Tangi area, now or in the foreseeable future, as a relatively young Pashtun Sunni man who is privately opposed to extremist militant groups and will be returning to Pakistan after living in Australia, a western country, for approximately five years, or as a result of the security situation in the Tangi area. I am not satisfied that any combination of the applicant’s circumstances would expose him to a real chance of serious harm in the Tangi area.
26. Therefore, the Applicant did not meet the refugee criteria.
27. The IAA then looked at the complimentary protection criteria, and at paragraph 52, concluded:
    • ... that the applicant did not face a real chance of harm in the Tangi area as a relatively young Sunni Pashtun man who privately opposes the activities of extremist militant groups, on the basis that he will be returning to Pakistan having lived in Australia, a as a result of the security situation in the Tangi area, or as a result of any combination of the matters. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of Signiant harm on these grounds..
28. Therefore, the decision was affirmed.
29. The Applicant’s application is extremely vague. The ground is:
    • 1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.
30. Firstly, I cannot look at the decision of the delegate. I can only look at the decision of the IAA. That decision is the only matter before me.
31. The ground itself is so vague and un-particularised that it does not, in any way, display a jurisdictional error. I asked the Applicant today what it was that he wished to say to me, and he has said that he has nothing to add and simply asking the Court, in effect, to make a decision.
32. To use the old saying, he is really “throwing himself on the mercy of the Court”. However, for me to have any regard to sympathy would be a betrayal of my judicial oath.
33. Mr Lee, who appears for the Minister, has quite properly, and in the best traditions of the Bar, raised with the Court what he considers to be something that could be argued.
34. As I said in the course of the recitation of the facts, after the SHEV interview the migration representative for the Applicant gave to the department or to the delegate the Applicant’s driver’s licence from Pakistan and a copy of his family registration certificate. The department also had some Facebook screenshots, which do not seem to have been anything that the delegate had regard to. Nevertheless, pursuant to s.473CB, those matters should have been before the IAA.
35. There is a concession by Mr Lee for the Minister that those matters were not before the IAA. The question is whether that, in any way, vitiates the decision of the IAA, or is it sufficient to say that because that was not considered that the IAA has fallen into jurisdictional error.
36. The Frist Respondent has referred me to two authorities. Firstly, Hossain v the Minister For Immigration & Border Protection [2018] HCA 34 where at paragraphs 29 and 30, the Court has said:
    • 29. That the decision-maker “must proceed by reference to correct legal principles, correctly applied “is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statue which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
    • 30. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive a person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decisionmaker failed to take into account mandatory consideration, which, in all the circumstances, was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
37. In AKK17 v The Minister for Immigration [2017] FCCA 2486, Driver J noted at paragraph 60 that:
    • I accept that the Authority is not required to consider every document provided to it as a precondition to exercising its decision making powers. Section 473DB(1) requires the Authority to review a decision referred to it under 473CA “by considering the review material provided to it under 473CB”. If a document is admitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant a material to the outcome of the review, its omission may well disable the review function.
38. In this matter I have seen reference to the drivers licence and family registration certificate, and have seen the Facebook screenshots. All of those items only go to ascertaining the identity of the Applicant. When one looks at the decision as a whole, the IAA has not made any positive or negative comments about the identity of the Applicant. The decision has rested upon whether or not the claim to have been kidnapped by the Taliban is a claim that they can be satisfied was true.
39. This means that it really does not matter whether the Applicant is who he said he was, or what his particular family situation is. The IAA had come to its decision as it had. So whilst I thank the Minister very much for bringing this matter to the attention of the Court, I do not find that the failure of the Secretary to give those documents to the IAA has, in any way, vitiated the decision, nor has it resulted in a jurisdictional error.
40. Having gone through the decision as I have, I can see nothing that could be hinting that a jurisdictional error has occurred. It is also pertinent to note that the Applicant himself has not said that there has been any jurisdictional error.
41. For those reasons I dismiss the application and order that the Applicant pay the costs of the Minister fixed in the sum of $7,467.00.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 17 April 2019