Ace17 v Minister for Immigration

[2019] FCCA 1321

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACE17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1321

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made an unreasonable conclusion – whether the Authority addressed a wrong question – whether the Authority’s findings were inconsistent or contradictory – whether the Authority was required to make express findings in relation to the reliability of country information – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DD, 476

Cases cited:

CRI026 v The Republic of Nauru [2018] HCA 19

Applicant: ACE17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFARS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 10 of 2017

Judgment of: Judge Street

Hearing date: 20 May 2019

Date of Last Submission: 20 May 2019

Delivered at: Sydney

Delivered on: 20 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr N Draper
D'Angelo Legal

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4,800.00.

DATE OF ORDERS: 20 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 10 of 2017

ACE17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 9 December 2016 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a Sunni Tajik from a particular region and a citizen of Afghanistan. The applicant arrived in Australia as an unauthorised maritime arrival on 31 March 2013. The applicant claimed to fear harm from the Taliban and Daesh due to his employment as a government contractor in his home region.

3. On 6 September 2016, the delegate found that it was reasonable for the applicant to relocate to Kabul and found that the applicant otherwise did not meet the criteria for the grant of the Safe Haven Enterprise visa.

4. On 7 September 2016, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant put on submissions dated 29 September 2016, which were expressly referred to in the Authority’s reasons. Insofar as the applicant’s submissions engaged with the decision of the delegate, the Authority had regard to the same. In respect of the new information, the Authority otherwise considered the same in accordance with the requirements of s 473DD of the Act.

5. The Authority in its reasons summarised the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority referred to the applicant’s claims in relation to his home region and his starting of a shop selling construction material to the local government.

6. The Authority referred to the applicant’s claims that, three years prior to leaving Afghanistan, his father received a written threat from the Taliban. Sometime after receipt of that letter, the applicant’s father’s car was attacked by the Taliban on the road between the applicant’s home region and Kabul, and the father was killed.

7. The Authority referred to the applicant’s claims that the applicant and his brother worked for a government contractor in a nearby town. They were warned to cease their employment and received a written threat from the Taliban that they would be killed. Three days prior to the applicant’s departure from Afghanistan, it was alleged that the applicant and his brother were ambushed while leaving their homes, their car was shot at and the applicant’s brother was killed. The applicant escaped and went to Kabul before departing Afghanistan.

8. The Authority accepted that the applicant’s father had been killed on the road to Kabul due to his perceived affiliation with the Afghan government arising from his employment. The Authority found that the applicant and his family had not been threatened or harmed due to that employment.

9. The Authority accepted that the applicant and his brother operated a construction business supplying building material to a variety of clients for approximately six years without experiencing any harm or being threatened by the Taliban until they commenced their subcontractor work for a local council which was perceived to be affiliated with international forces. The Authority accepted that the applicant and his brother did not heed a warning letter from the Taliban, that they were targeted by the Taliban and that his brother was killed.

10. The Authority accepted that the Taliban has a strong presence in the applicant’s home region and that the Taliban would have been aware of the applicant’s absence from the area and may have monitored his family. The Authority accepted that there is a real chance the applicant would be physically harmed if returned to his home village due to an imputed political opinion, being a person from a western country.

11. The Authority found that there is no indication that Sunni Tajiks in Kabul are targeted on the basis of their ethnicity or religion and was not satisfied that the applicant faces a real risk of harm in Kabul as a result of his ethnicity or religion.

12. The Authority did not accept that the applicant would be imputed with an adverse profile as a government affiliate in Kabul. The Authority was not satisfied that the applicant would be imputed with a pro-western profile in Kabul. The Authority found that the applicant would be returning to Kabul where he has no identifiable links to the international community or the Afghan government. The Authority found that there is no evidence to suggest that returnees from western countries are targeted. The Authority was not satisfied that the applicant would be imputed with any adverse political opinion in Kabul as a Sunni Tajik who was a former government subcontractor and has resided in a western country, or for a combination of these factors.

13. The Authority was satisfied that the applicant, as a Sunni Tajik who was employed as a government subcontractor or as a returnee from the west, does not face a real chance of persecution upon return to Kabul in the reasonably foreseeable future.

14. The Authority found that the applicant failed to meet the requirements of the definition of “refugee” under s 5H(1) of the Act and found that the applicant failed to meet the criteria in s 36(2)(a) of the Act.

15. The Authority turned to consider the issue of complementary protection. The Authority referred to the finding that had been made in relation to the applicant’s home region and the finding that there is not a real chance that the applicant will face serious harm in Kabul due to his imputed political opinion as a returnee from the west or as a Sunni Tajik who previously was employed as a government subcontractor. The Authority referred to the “real risk” and “real chance” test being the same and was not satisfied that there is a real risk of the applicant suffering harm on return to Kabul for those reasons.

16. The Authority referred to the current security situation in Kabul and referred to giving consideration as to whether there is a real risk of significant harm due to generalised violence in Kabul. The Authority referred to Department of Foreign Affairs and Trade (“DFAT”) country information which indicates that the security situation is better in areas where government forces maintain strong control, such as major urban areas like Kabul.

17. The Authority also referred to primary targets of violence being government institutions, political figures, the Afghan National Defence and Security forces, personnel associated with North Atlantic Treaty Organisation’s Resolute Support Mission and other coalition forces, other security services, international organisations and foreign missions of some countries. The Authority also noted that mosques, schools, hospitals and other civilian targets are vulnerable. The Authority identified that attacks are often directed at specific targets.

18. The Authority was satisfied that the Afghan government maintains effective but not absolute control of major urban areas, in particular, Kabul. The Authority found that people associated with the government or international community are at a significantly higher risk than ordinary Afghans in Kabul. The Authority found that the applicant does not have such a profile in Kabul. The Authority was not satisfied that there is a real risk of the applicant facing significant harm on the basis of the general security situation in Kabul.

19. The Authority referred to the applicant’s circumstances and country information. The Authority found that it was not satisfied that there is a real risk of the applicant suffering significant harm on his return to Kabul.

20. The Authority turned to consider whether it was reasonable for the applicant to relocate to Kabul on return. The Authority expressly referred to the submissions advanced on behalf of the applicant and the assertion that he had no meaningful support, there being a lack of basic services in Kabul, the contention that the applicant would not be able to access basic needs, and to the security situation in Kabul having deteriorated.

21. The Authority also referred to United Nations High Commissioner for Refugees (“UNHCR”) country information and the only exception to the requirement of external support are single, able-bodied men and married couples of working age without identified specific vulnerabilities.

22. The Authority also referred to DFAT country information. The Authority referred to the lack of financial resources and employment opportunities being the greatest constraints to successful internal relocation, which the Authority found is generally more successful for single men of working age. The Authority accepted that a lack of tribal networks can impact on reintegration.

23. The Authority considered the circumstances of the applicant who, prior to his arrival in Australia, had spent all of his life in Afghanistan. The Authority found that the applicant is an able-bodied male of working age with no health problems or other specified vulnerabilities as identified by the UNHCR. The Authority referred to submissions in relation to the applicant not having meaningful support and no pre-identified accommodation and livelihood options. The Authority was satisfied that the applicant has the necessary skills and capacity to subsist in Kabul and some family networks, albeit not close to him, to assist him in re-establishing himself in Kabul.

24. The Authority referred to the deterioration in the economic situation in Afghanistan due to the drawdown of the international presence and reduced aid. The Authority referred to Kabul offering a greater range of employment opportunities than other areas in Afghanistan, as well as the city’s cost of living and housing. The Authority accepted that, despite there being relatively more employment opportunities in Kabul, there is underemployment and unemployment particularly in the construction industry. The Authority found that the applicant has considerable work experience in the construction industry in Afghanistan. Despite having a limited education, the applicant operated and owned a building supply business which also undertook contracted construction work. From the applicant’s description at the interview, the business provided a comfortable income with no financial problems. The Authority was satisfied that the applicant would be able to obtain employment to enable him to subsist in Kabul, as well as provide for his family in his home region.

25. The Authority referred to the applicant’s claims in respect of him having no relatives or meaningful support in Kabul. The Authority referred to the applicant saying he had a second cousin, as well as two other more distant relatives who lived in Kabul. The Authority referred to the visa interview in which the applicant stated that he is in occasional contact with his second cousin who has a shop in Kabul, and the applicant’s family stay at his house when they visit Kabul. The Authority also referred to the applicant having a tribal friend who assisted him when he was leaving Afghanistan, and who lives in Kabul.

26. The Authority accepted that living conditions for the applicant would not be without difficulties but found that the applicant has some family and tribal links in Kabul. The Authority was satisfied that the applicant will be able to utilise those to obtain their support. Whilst the applicant has not resided in Kabul, the Authority found that he is an able-bodied male of working age who has family residing in Kabul as support and who may be able to assist him in establishing himself in Kabul. The Authority expressly referred to taking into account the applicant’s personal circumstances and found that it was satisfied it is reasonable for the applicant to relocate to Kabul.

27. In these circumstances, the Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Afghanistan, there is a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

The ground

1. The ground in the application is as follows:

   1.The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.

   Particulars

   (a)The Authority misdirected itself in concluding that the Applicant, an Afghani citizen of Tajik ethnicity from Baraki Rajan in the Logar province, and a Sunni Musilim, that the Applicant does not face a real chance of persecution if he is relocated to Kabul, Afghanistan, when the Authority found that it is reasonable and practicable for the applicant to relocate to Kabul when, with regard to Kabul:

   (i)         there is evidence of societal discrimination against people of Tajik ethnicity;

   (ii)    approximately 64 percent of Kabul’s dwellings are considered informal consisting of basic housing with unreliable access to infrastructure, difficult living conditions and often no provision of sanitation and other basic services;

   (iii)   there are deliberate attempts by the authorities, in failing to provide sanitation and basic services, to create an incentive for people to return to their areas of origin in other provinces;

   (iv)   since 1996 there has been a period of neglect and under-investment in Kabul’s urban infrastructure;

   (v)     Kabul’s population has grown from 500,000 to over four million people;

   (vi)   Kabul remains one of the poorest cities in the world;

   (vii) Kabul regularly experiences serious security incidents;

   (ix)   Kabul’s economy is based on trade and other service industries and large parts of the city remain poor;

   (x)     Industries reliant on the international community, including the construction industry, have experienced a sharp decline in growth rates over the last decade;

   (xi)   the government is in a weak fiscal position and spending restraints are having a negative impact on Kabul’s economy; and,

   (xii) the cost of living is relatively high in Kabul compared to the rest of the country and rent is expensive.

2. Mr Draper on behalf of the applicant submitted that the finding that the applicant did not face a real chance of persecution if relocated to Kabul was legally unreasonable. Mr Draper identified findings by the Authority in relation to the applicant facing a real chance of harm in his home region, as well as country information in relation to Tajiks facing some societal discrimination. Mr Draper also identified findings by the Authority that Sunni Tajiks associated with targets of a kind identified in paragraph 18, in relation to government institutions and international entities, may become targets for insurgent attacks due to their positions or perceived links. The Authority, however, found that there is no indication on the evidence before it that Sunni Tajiks in Kabul are targeted on the basis of their ethnicity or religion.

3. Mr Draper also referred to the country information in relation to increased insurgent attacks in Kabul. There is no indication that returnees have been targeted. Mr Draper referred to the finding that insurgents regularly conduct high-profile attacks and that insurgent attacks remain common. Mr Draper referred to the Authority’s finding that there is not a real risk of harm for the applicant in relocating to Kabul by reason of the general security situation in Kabul. Mr Draper submitted that it was illogical for the Authority to find that it is not satisfied there is a real risk of the applicant facing significant harm because of the security situation in Kabul, given the findings referred to above made by the Authority. Mr Draper also submitted that it was illogical for the Authority to conclude that it is reasonable for the applicant to relocate to Kabul given the findings from the country information.

4. The Authority’s reasons are not to be read with a keen eye for error. It is apparent from the Authority’s reasons that the Authority took into account the country information and made adverse findings in determining whether or not there was a real risk to the applicant from the general security situation in Kabul, whether the Authority was satisfied that the applicant faces a real chance of serious harm on return to Kabul, and whether it was reasonable for the applicant to relocate to Kabul. There is no illogicality in the Authority’s reasons in that regard, and the adverse findings cannot be said to lack an evident and intelligible justification.

5. Mr Draper also submitted that the Authority had engaged in illogicality in determining that it was reasonable for the applicant to relocate to Kabul given his personal circumstances, referring to the second cousin and the applicant’s age, health and skills. It is apparent from the Authority’s reasons, as summarised above, that the Authority took into account all the circumstances in determining whether it was reasonable for the applicant to relocate, including the applicant’s personal circumstances. The Authority’s adverse finding in that regard cannot be said to be illogical and cannot be said to lack an evident and intelligible justification.

6. Mr Draper also submitted that the Authority, by reason of the decision in CRI026 v The Republic of Nauru [2018] HCA 19, was required to separately determine whether the country information was reliable information in respect of relocation, the reasonableness of relocation, and the safety and the suitability of the place of relocation. The Court does not accept that authority requires express findings in respect of the reliability of the country information as alleged. It is a matter for the Authority what country information the Authority accepted. No jurisdictional error arises by reason of the absence of findings referable to the issue of reliability of country information.

7. Mr Draper also submitted that, by reason of the reference to the country information in which DFAT reported there had been an increase in insurgent attacks, although there is no indication that returnees have been targeted, the Authority had taken into account inconsistent and contradictory country information. Mr Draper submitted that the Authority’s findings in relation to the reasonableness of relocation to Kabul were contradictory and inconsistent with the country information referred to by the Authority and that country information was unreliable.

1. The Court does not accept that the Authority’s findings based on the country information referred to were contradictory and inconsistent. It was a matter for the Authority to determine what findings should be made from the country information. The Authority made findings that were open for the reasons given by it as summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. In fact, the substance of Mr Draper’s submissions are an invitation to the Court to engage in merits review. This Court has no power to review the merits.

2. The summary of the particulars relied upon by Mr Draper in relation to the assertion that it was not legally reasonable to conclude that the applicant had a well-founded fear of persecution are, in substance, also an invitation to the Court to engage in merits review. The Court is not satisfied that the Authority’s finding that the applicant does not have a well-founded fear of persecution is affected by any illogicality or unreasonableness. The Court does not accept that the Authority asked itself the wrong question or misdirected itself in determining whether the applicant had a well-founded fear of persecution or whether it was reasonable for the applicant to relocate to Kabul. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s claims and the making of dispositive findings which were open to it. No jurisdictional error as alleged in ground 1 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2019