ADU18 v Minister for Home Affairs

[2018] FCCA 3958

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADU18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3958

Catchwords:
MIGRATION – Application for protection visa – country information adverse to claims – adverse credibility findings – application dismissed.

Legislation:

Migration Act 1958 (Cth), Section 473CB

Cases cited:

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Minister for Immigration and Citizenship v SZMDS 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant: ADU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 19 of 2018

Judgment of: Judge Egan

Hearing date: 29 November 2018

Date of Last Submission: 29 November 2018

Delivered at: Brisbane

Delivered on: 29 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Marr

Solicitors for the Applicant: Fisher Dore Lawyers

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Minter Ellison

ORDERS

IT ORDERED THAT:

1. The Applicant be granted leave to file an Amended Application dated 29 November 2018.

2. The Amended Application filed on 29 November 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 19 of 2018

ADU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan.  He arrived in Australia on 3 February 2013, as an “unauthorised maritime arrival”.  On 19 April 2016, the applicant applied for a Temporary Protection (Subclass 785) visa.

2. On 28 February 2017, the Delegate to the Minister refused to grant the applicant the protection visa.  The Delegate’s decision was a fast track reviewable decision, which was accordingly referred to the Immigration Assessment Authority (“the Authority”) for review.

3. On 14 December 2017, the Authority affirmed the Delegate’s decision.  By application filed on 11 January 2018, the applicant sought judicial review of the said decision of the Authority made on 14 December 2017.

4. At the hearing, the applicant was granted leave to file an amended application, which is marked as exhibit 2.  That application has five grounds for review.  Ground 1 is as follows:

   1. The IAA erred in failing to consider the applicant’s claims that;

   (a) The Rocket that killed his parents was fired by the Taliban, and;

   (b) In the area where he lived rockets were fired every day.

5. As to the assertion that the Authority failed to consider the applicant’s claims that a rocket had killed his parents, and was fired by the Taliban, or that rockets were fired every day, the Authority clearly did deal with such an assertion.  It did so in the context of the Authority having found that the applicant had provided “varying and inconsistent” evidence to the Authority.

6. At paragraph 48 of the reasons of the Authority, it was recorded that, during the visa interview, the applicant had been asked on several occasions whether he had faced any problems, or experienced anything personally, as a Shia Hazara living in Afghanistan, to which the applicant had replied that he had not personally faced any difficulties, nor that anyone in his family had done so.

7. The Authority found that the applicant’s failure to raise those claims of past harm during the visa interview, both in relation to him and his family, undermined the credibility of his later claims to have suffered harm in Afghanistan.

8. The applicant’s “story”, at [46]–[48] of the Authority’s reasons, was recorded by the Authority as being “shifting”, as having “shifted under repeated questioning”, leading to the finding that the applicant was “deliberately misleading and obfuscatory” in his answers to the Delegate and the interviewing officer.

9. At [53] of its reasons, the Authority went on to find that the applicant would return to live at and work in the family’s grocery/seed business in his home area in the Muqur district in Ghazni Province, should he be returned to Afghanistan.

10. It was conceded on behalf of the first respondent that there was no direct evidence that the applicant intended to do so.  However, the evidence was that the applicant had family in the Muqur district at the time of his having departed Afghanistan, and that his family, including himself, had there conducted a grocery and seed-selling business.  It was reasonable, in those circumstances, for the Authority to infer that, if returned to Afghanistan, the applicant would take up and be involved in a business about which he was familiar.

11. It was also reasonable for the Authority to infer that the applicant would return to a place which the Authority found to be a place where the applicant would face “no harm or mistreatment”, a finding based on relevant country information. There is no merit to this ground.

12. Ground 2 of the application is related to the question of the applicant being found by the Authority to be likely to return to Muqur to work in the former family business.  Similar considerations apply to that ground as to the first ground, insofar as it has above been addressed.  The ground is as follows:

    2. The IAA erred in failing to consider the applicant’s claim, or integer of a claim that clearly arose on the information before the IAA and on its finding that the applicant would return to work in his family business, that he would have to travel on the roads around Muqur District and elsewhere to procure supplies for his family grocery business.

13. There is no evidence that the Authority did not properly address issues relating to rocket attacks or the likelihood of the applicant returning to work in the family business, and there is no merit to either ground.  That the tribunal may not have referred to each and every part of its reasoning process when arriving at its findings is not determinative:  see ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, per French, Sackville and Hely JJ, at [47], where it was said:

    [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

14. Specifically, at [50] of the reasons, the IAA found as follows:

    [50] Weighing everything before me, I find that the applicant is not a witness of credit.  I am prepared to accept that his parents were killed in 2010, in an indiscriminate rocket attack.  That aspect of his claims has been reasonably consistent, notwithstanding my concerns about his evidence relating to his attendance at his father’s funeral.  However, I do not accept any of his other claims, including that his siblings were involved in a second rocket attack and are missing.  I also do not accept that the applicant or his family ever faced any threat, mistreatment, assault or any other form of harm (including being prevented from practising their faith) from the local Taliban in Muqur, Islamic State, local Sunnis, Pashtuns or any other person or group, whether in connection with their grocery business, or otherwise.  On his own evidence, the rocket attack that killed his parents was not a deliberate attack.  I am not satisfied that he and his family were ever targeted because of their ethnicity or faith in Muqur, and I do not accept the applicant’s claims to the contrary.

15. At [53] of the Authority’s reasons, the Authority found that there was no real chance of the applicant being seriously harmed in connection with his work and family business in his village in Muqur.  At [54], the authority found that the applicant would be returning to Afghanistan as a non-practicing Shia Muslim, and whilst it was accepted that there had been an escalation of attacks against Shias in Kabul and other areas in Afghanistan, it was found by the Authority that the country information did not indicate any corresponding escalation in attacks against Shias or a rise in sectarianism against Shias in Ghazni Province, whether from Sunnis, the Taliban or Islamic State.

16. At [55] of the reasons, it was found by the Authority, in terms of ethnicity, that outside of the security situation on the roads, it was not satisfied that ethnic targeting of the Hazaras was a feature of the security environment in the applicant’s home area in the Muqur District in Ghazni.  At [56] of the reasons, it was found by the Authority that the country information did not indicate that Hazaras or Shias were being systematically targeted for harm in the Ghazni area, or that there was a real chance, or real risk, of the applicant being seriously harmed on the basis of his ethnic or religious profile.

17. The Authority further found in that paragraph that:

    [56] The applicant was a grocer, and I consider it all likelihood he would return to live and work as a grocer in his home area.  He does not have any links to the government, or the international community, and I find the applicant has no higher profile beyond his ethnic and religious background, nor is there any reason to consider he would have a higher profile or proximity to any person with such a profile on his return to the country.

18. The Authority at [62] also found that the country information did not indicate that there would be risks to the applicant on the roads in his home area between his village and Muqur.  The authority was not satisfied that the Taliban was seeking to target Hazaras or Shias in Muqur.  The authority found that whilst the absence of recent attacks against the Shia Hazara population in Ghazni province did not preclude the possibility of future attacks, it was considered that the chance of the applicant being involved in an incident or attack on the roads, or put at additional risk because of his ethnic or religious profile in such an attack, though credible, was remote.

19. There is no merit to the assertion that the Authority failed to properly consider the question of risks to the applicant if he was to travel by road in and about his Muqur District or within Ghazni province. 

20. Ground 3 of the application for review is as follows:

    3. The IAA erred in failing to consider information that it was required to consider pursuant to s.473DB of the Migration Act, that being evidence adduced by the delegate that

    a) Pashtun Majority districts which would correspond to the applicant’s home district of Muqur were not safe due to the presence of the Taliban, and

    b) “Pajhwok Afghan news reported in January 2016 that Muqur district was under direct threat from Taliban.”

21. Ground 3 refers to a part of the country information before the delegate and before the authority. As referred to earlier, though the authority may not have set out in detail each and every aspect of its reasoning process before arriving at its decision, it cannot necessarily be inferred that it did not take into account the contents of the country information referred to in that ground. At [2] of its reasons, the authority stated it had had regard to the material given by the secretary under Section 473CB of the Migration Act 1958 (Cth) (“The Act”).

22. It otherwise made direct findings as to matters raised by the applicant in its reasons at [13], [18], [35], [47], [50], [53] and [54-56] inclusive.  It cannot be asserted that the Authority ignored any of the relevant country information that was before it when one looks at the detailed reasons which handed down by the Authority.  The news article referred to formed part of the matrix of facts before the Authority.  The Authority appropriately dealt with those facts in arriving at the findings it made. There is no merit to this ground.  

23. Ground 4 of the application for review is as follows:

    The IAA erred in failing to consider whether the Taliban may pose threats to Hazaras and Shias in Muqur District of Ghazni Province of Afghanistan in the foreseeable future, and so erred in its consideration of whether the application had a well-founded fear of persecution within the meaning of ss 5H and 5J of the Migration Act.

24. Ground 5 of the application for review is as follows.

    The IAA erred in that:

    a) the findings at [53] of its reasons for decision that:

    i) the applicant would return to live and work in his family’s grocery/seed business in his home area in Muqur District in Ghazni Province.

    ii) the family business is likely still ongoing;

    b) the finding at [56] of its reasons for decision that [in] all likelihood [the applicant] would return to live and work as a grocer in his home area; were made without, or with insufficient, evidence.

25. Grounds 4 and 5 have each been the subject of considerable attention by the authority.  At [54] and [55] of the reasons of the authority, the Authority was not satisfied that any ethnic targeting of Hazaras within Afghanistan was a feature of the security environment in the applicant’s home area in Muqur District in Ghazni Province. 

26. At [56] of the reasons, the authority found that:

    [56] That assessment is corroborated by the country information before me. That information confirms Ghazni is a volatile and insecure province, where insurgents are operating in various districts and frequently carry out activities, resulting in high numbers of security incidents. However, it is also important to highlight that the majority of attacks in the province relate to the insurgency. The country information before me does not indicate that Hazaras (or Shias) are being systematically targeted for harm in the Ghazni area, or that there is a real chance or real risk of the applicant being seriously harmed on the basis of his ethnic (or religious profile) in this area. Advice before me is that the persons and groups that remain at risk from insurgent groups in Afghanistan, including within the Ghazni area, are those associated with the government, the military, the media and the international community. The applicant was a grocer, and I consider in all likelihood he would return to live and work as a grocer in his home area. He does not have any links to the government or the international community, and I find the applicant has no higher profile beyond his ethnic and religious background, nor is there any reason to consider he would have a higher profile, or proximity to any person with such a profile, on his return to the country.

27. The country information did not indicate that Hazaras (or Shias) were being systematically targeted for harm in the Ghazni area, or that there was a real chance or real risk of the applicant being seriously harmed on the basis of his ethnic (or religious profile) in this area.  The Authority has appropriately addressed the question of whether the applicant would be likely to suffer a real chance or real risk of harm. 

28. It cannot be said that in relation to the findings of the authority that no other rational or logical decision-maker could not have made the same decision, or come to the same conclusions as the authority. (See Minister for Immigration and Citizenship v SZMDS 240 CLR 611 at [130]).

29. Neither could it be said that in respect of grounds 4 or 5 of the application for review, that the decision arrived at by the authority was legally unreasonable, or one lacking an evident and intelligible justification as such concepts were the subject of consideration in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

    [66]  This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]  As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”.  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

30. As to the assertion in ground 5 that there was no evidence upon which the Authority based its finding that the applicant would return to live and work in the family’s grocery/seed business, or that the family business was ongoing, there was ample evidence to suggest that through his experience in the past in such business, the applicant could reasonably have been inferred to be someone as likely to return to such business.  There is no merit to such ground.

31. In all of the circumstances, therefore, the application for review is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  4 February 2019