AEJ17 v Minister for Immigration
[2020] FCCA 261
•13 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEJ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 261 |
| Catchwords: MIGRATION – Protection Visa – find that return to home area would be unsafe – find that it is reasonable to relocate to Kabul – failure to give adequate consideration t the reasonableness of relocation – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss 36(2B), 476(1), 473CC. |
| Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCCA 76 CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 |
| Applicant: | AEJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 67 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 7 October 2019 |
| Date of Last Submission: | 7 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Murano |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 7 October 2017 and amended 5 September 2019 be allowed and the Immigration Assessment Authority decision made on 9 December 2016 should be set aside and in lieu a writ of certiorari issue quashing the decision of the Authority and that a writ of mandamus issue to the Authority to review the Delegate’s decision pursuant to section 473CC of the Act according to law.
The First Respondent pay the costs of the Applicant fixed in the sum of $7,467.00.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 67 of 2017
| AEJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 7 October 2017 and amended on 5 September 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 9 December 2016. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the first respondent (‘the Minister’) refusing to grant a Temporary Protection Visa (class XD) (subclass 785) (‘TPV’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).
The matter was heard on 7 October 2019.
For the reasons which follow I have concluded that the application should be allowed.
Background
The applicant is a citizen of Afghanistan from the Khost province. He is of Pashtun ethnicity[1] and is a Sunni Muslim.[2] The applicant has a wife and five relatively young children who remain in Afghanistan.[3]
[1] Court Book, 6.
[2] Applicant’s outline of submissions, filed 5 September 2019, [2].
[3] Court Book, 7-10.
The applicant arrived in Australia on 23 September 2012[4] as an unauthorised maritime arrival.[5]
[4] Court Book, 222.
[5] Applicant’s outline of submissions, filed 5 September 2019, [2].
On 29 November 2012, the applicant completed an entry interview.[6]
[6] Court Book, 1-29.
On 11 September 2013, the applicant applied for a Permanent Protection Visa (Class XA) (subclass 866).[7]
[7] Court Book, 30-110.
On 14 November 2015, the applicant received a letter from the Department of Immigration and Border Protection (‘the Department’) advising that the above application was invalid and would not be progressed further.[8]
[8] Court Book, 111.
By that letter, the applicant was invited to apply for either a TPV or a Safe Haven Enterprise (subclass 790) visa.[9]
[9] Court Book, 111.
On 17 December 2015, the applicant applied for the TPV.[10]
[10] Court Book, 169 (application from Court Book 122 to 166).
On 31 March 2016, the Department invited the applicant to a hearing before the Delegate.[11]
[11] Court Book, 180.
On 14 April 2016, the applicant attended the interview.
On 2 May 2016, the applicant’s migration agent provided to the Department written submissions.[12]
[12] Court Book, 189-211.
On 27 October 2016, the Delegate refused to grant the TPV.[13]
[13] Court Book, 220.
On 7 November 2016, the matter was referred to the Authority.[14]
[14] Court Book, 231.
On 28 November 2016, the applicant’s representatives provided further submissions to the Authority.[15]
[15] Court Book, 258-263.
On 9 December 2016, the Authority affirmed the Delegate’s decision not to grant the applicant the TPV.
The applicant’s claims to fear harm
The applicant’s submissions at [4] to [6] briefly outline the applicant’s claims. The Minister’s submissions note that these accurately set out the relevant background.[16]
[16] Minister’s outline of submissions, filed 1 October 2019, [4].
The claims at [4] to [6] of the applicant’s submissions state:
4. In a statutory declaration that accompanied his application for the visa, the applicant claimed that if he was forced to return to Afghanistan he would be seriously harmed (possibly, killed) and subjected to torture, cruel and inhuman treatment and punishment by members of the Taliban.
5. The applicant referred to an incident in April 2012 during which he witnessed two Talibs planting a land mine or bomb in close proximity to his home in Manzai Village, Sabari District. The applicant had a “minor argument” with the Talibs and was then threatened at gunpoint and warned that if he did or said anything else to interfere, he would be harmed. The applicant reported the incident to the local police station and the police removed the explosive device. Later that evening, the Taliban came to the applicant’s home in search of the applicant. The applicant managed to flee to his cousin’s home but the Taliban punched the applicant’s father in the head. The applicant made plans shortly after to leave Afghanistan.
6. The applicant claimed that since his arrival in Australia, the Taliban had continued to ask his family about his whereabouts and his brother had gone missing. The applicant feared that the Taliban would seek retribution against him should he return to any part of Afghanistan. He claimed that his profile would be heightened due to the fact that he had since travelled to and spent a significant period of time in a Western country.
(citations omitted)
The Authority’s decision
The applicant’s submissions also accurately summarise the Authority’s decision at [11] to [13]:
11. The Authority, unlike the delegate, accepted the applicant’s claims regarding the incident with the Taliban in 2012. The Authority found that the applicant’s account had been “generally consistent” at each of the applicant’s interactions with the Department and in his written statutory declarations and that it was plausible when considered against relevant country information. The Authority was satisfied that there was a small but nevertheless real chance the applicant would be subjected to serious harm on the basis of his previous actions in 2012 if he returned to his home. The Authority was satisfied that the applicant had a well-founded fear of persecution in his home region (identified as Khost province).
12. However, the Authority was not satisfied that the applicant had a well-founded fear of persecution in Kabul, so that for the purposes of s 5J of the Act, the real chance of persecution did not relate to all areas of the receiving country.
13. The Authority also recorded a finding, in the context of its complementary protection assessment and for the purposes of s 36(2B) of the Act, that it was satisfied that it was reasonable for the applicant to relocate to Kabul. This finding is the subject of the applicant’s judicial review challenge.
(citations omitted)
Ground of review
By the applicant’s Amended Application, the applicant only has one ground of review:
1. The Authority constructively failed to exercise its jurisdiction by failing to consider and determine the reasonableness and practicability of the applicant relocating to Kabul, in terms of his individual circumstances and by reference to the relocation objections he expressly raised.
Applicant’s submissions
The applicant says that the Authority was:
[…] obliged, but failed, to consider and determine the reasonableness and practicability of the applicant relocating to Kabul, in terms of his individual circumstances and by reference to the relocation objections he expressly raised.[17]
[17] Applicant’s outline of submissions, filed 5 September 2019, [14].
The applicant relied on SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (‘SZATV’) and MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (‘MZANX’).
At [24] of SZATV, the plurality stated:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
At [55] of MZANX, Mortimer J states:
In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship…Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope.
Further reference to [58] of MZANX was made where Mortimer J stated:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations.
The applicant says that the Authority failed at a factual level to respond to issues raised by the applicant or properly consider the information before it.[18] The purported failure is said to be that the Authority failed to consider whether the applicant, as an individual without familial responsibilities or an individual responsible for his wife and five dependent children, could relocate to Kabul and meet his own and his family’s basic needs.[19] The applicant says the Authority failed to properly consider his particular circumstances.
[18] Applicant’s outline of submissions, filed 5 September 2019, [31].
[19] Applicant’s outline of submissions, filed 5 September 2019, [31].
The applicant says the Authority’s failure arises because:
a)the Authority failed to consider the existence of construction work in Kabul, after finding that the applicant’s skills as a farmer meant he could be employed in the construction industry;[20]
b)the Authority made generalised statements without application to the applicant’s circumstances, such as:
i)finding that the applicant may be able to find work in the construction industry without an inquiry into what jobs were available for the applicant (being an uneducated returnee from the West) and in circumstances where the authority had no traditional or family support network;[21] or
ii)the Authority’s finding that the applicant will be supported by other Sunni Muslims in Kabul, without saying what form that support will take;[22]
c)the Authority either paid insufficient attention to or overlooked the framework of objections expressly identified by the applicant:
i)the applicant complains that the Authority, at [46] of the decision record, ‘undertook no evaluation and recorded no findings directed at the reasonableness and practicability of the applicant’s family members relocating to Kabul’ and that this failure is particularly stark where ‘country information provided by the applicant […] suggested [that] children returning to Kabul were especially vulnerable, including due to a lack of schooling, medical aid and water’;[23] and
ii)the Authority failed to make a finding whether the applicant would be in a position to support his family if the family remained in Khost.[24]
[20] Applicant’s outline of submissions, filed 5 September 2019, [32].
[21] Applicant’s outline of submissions, filed 5 September 2019, [34].
[22] Applicant’s outline of submissions, filed 5 September 2019, [36].
[23] Applicant’s outline of submissions, filed 5 September 2019, [40]
[24] Applicant’s outline of submissions, filed 5 September 2019, [41].
The applicant also notes that it is not clear how the Authority has reconciled some of its findings. The applicant notes that the Authority made a finding at [27] of the decision record that the ‘UNHCR [United Nations High Commissioner for Refugees] states that among the primary targets of attacks are national and local political leaders, government officials, teachers […] and construction workers’ but finds that an appropriate job for the applicant would be in the construction industry.
The Minister’s submissions
The Minister says that the Authority ‘sufficiently considered the particular circumstances of the applicant’ by:
a)considering UNHCR guidelines (and assessing the applicant’s circumstances by reference to those);[25]
b)finding that he was an exception to the UNHCR guidelines that the applicant should have traditional support networks as he was a single male without dependents (his family remaining in Khost);[26]
c)considering the applicant’s circumstances to relocate and his access to traditional support network in the context of having been away from his family since 2012, Kabul’s size and diversity of populace and there being a Sunni community in Kabul;[27]
d)the fact the Authority ‘took into account’ that the applicant’s family (and mother) may come and join him,[28] and that he ‘may become vulnerable to exploitation if he returns to Kabul’;[29] and
e)the fact the Authority found that the applicant could work in labour-intensive roles, would be returning to a country where he speaks the language and is familiar with the culture.[30]
[25] Minister’s outline of submissions, filed 1 October 2019, [10](a).
[26] Minister’s outline of submissions, filed 1 October 2019, [10](b).
[27] Minister’s outline of submissions, filed 1 October 2019, [10](c).
[28] Minister’s outline of submissions, filed 1 October 2019, [10](d).
[29] Minister’s outline of submissions, filed 1 October 2019, [10](e).
[30] Minister’s outline of submissions, filed 1 October 2019, [10](g)-(h).
The Minister responds to the applicant’s claims, saying that:
a)the applicant is engaging in a “checklist” approach that is impermissible (citing AHK16 v Minister for Immigration and Border Protection [2018] FCCA 76 at [29]);[31]
b)the Authority based its decision that the applicant could be employed in construction or other labour-intensive roles on probative material and that labour intensive roles would, as a matter of logic, be prevalent in Kabul given that its economy is based on trade and other service industries;[32]
c)the Authority did inquire into the kind of jobs available where the applicant lacked traditional or family support networks, with the Minister saying that the Authority found the applicant would be able to work in labour-intensive roles (it is claimed that one may infer there are a broad variety of jobs available),[33] and that, in any event, a traditional support network was not strictly necessary;[34]
d)the Authority engaged in specific, and ultimately correct, reasoning when finding that the applicant would have support from the Sunni community in Kabul and that the applicant did fall within the UNHCR exception;[35]
e)in response to the claim the Authority failed to consider the applicant’s obligations to his family, the Minister says:
i)the applicant did not make the claim that his family would relocate to Kabul, relying on the applicant’s following submissions to prove this point: ‘[the applicant] has a large family he needs to support’ and that ‘the applicant also has responsibility for caring for his wife, mother and children. Given those matters, we submit the applicant and his family would be vulnerable to exploitation and harm if forced to relocate’;[36]
ii)the Authority did consider the applicant’s family may relocate, and then the Authority made findings that the applicant is a male with no vulnerabilities, is of working age (and ‘is more likely to reintegrate successful than unaccompanied women and children’) and that his farming skills are transferable to other labour-intensive industries;[37] and
iii)that the Authority sufficiently dealt with the prospect of the applicant’s family relocating to Kabul by ‘mentioning the “possibility”’ that the family may relocate, and, as the Minister submits, the Authority otherwise relies on implications that the applicant’s employment as a labourer would allow him to provide for his family and by mentioning UNHCR country information that relates to the security of Kabul ([26] and [27] of the Authority’s decision record) and the economic situation of Kabul (at [43] of the Authority’s decision record).[38]
[31] Minister’s outline of submissions, filed 1 October 2019, [12].
[32] Minister’s outline of submissions, filed 1 October 2019, [13].
[33] Minister’s outline of submissions, filed 1 October 2019, [14](a).
[34] Minister’s outline of submissions, filed 1 October 2019, [14](b).
[35] Minister’s outline of submissions, filed 1 October 2019, [16].
[36] Minister’s outline of submissions, filed 1 October 2019, [17](a).
[37] Minister’s outline of submissions, filed 1 October 2019, [17](b).
[38] Minister’s outline of submissions, filed 1 October 2019, [17](c).
With respect to the contradiction the applicant complains of, the Minister says that the Authority found that the applicant could work in labour-intensive industries other than just construction.[39]
[39] Minister’s outline of submissions, filed 1 October 2019, [15].
Applicant’s submissions in reply
The applicant orally responded to the Minister’s written submissions. The Minister’s, and in particular the Authority’s, reference to [2.13] of the DFAT [Department of Foreign Affairs and Trade] Thematic Report Conditions in Kabul – September 2015 (‘DFAT Thematic Report’) to support the Authority’s finding that there is employment growth in the construction industry. Paragraph 2.13 states:
Because of the city's size and growth, Kabul offers a greater range of employment opportunities than many other areas of Afghanistan. Over the last decade, employment growth has been strongest in Kabul's service sector, including small businesses such as family-owned markets, and in the construction industry. Due to the significant military and government presence in Kabul, there are also employment opportunities in the armed forces and the civil service.
The applicant points to other parts of the DFAT Thematic Report, saying that a proper application of the report to the applicant’s circumstances would have utilised other provisions. The applicant noted paragraph 2.14 where it is said:
Although there are no reliable statistics, unemployment is widespread in Kabul and underemployment is also common. The influx of [Internally Displaced Persons] and returnees to the city has put pressure on the local labour market. The decrease in the international presence and the tight budgetary situation of the Afghan government have further reduced the availability of quality employment opportunities. Those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. Many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure-many work as relatively poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or work as street-sellers. Interviewees in Kabul for the preparation of this report often cited a lack of job opportunities as a key concern, more so even than the security situation.
The applicant re-iterated that the Authority was required to consider the applicant’s circumstances and whether it was reasonable for the applicant to relocate in those circumstances: SZATV. The applicant stated that the Authority had not properly considered the DFAT Thematic Report or applied it to the applicant’s circumstances.
Consideration
Since the decision in this matter was reserved, I have had the benefit of reading CXO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 17 where Wheelahan J surveys the leading cases dealing with section 36(2B) of the Act. As Wheelahan J noted at [49], Kenny J identified at [35] of MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 that there were two stages of enquiry under section 36(2B)(a): whether there is an appreciable risk of the occurrence of the feared persecution at some other place, and if not, whether the relocation to that place was reasonable.
In the present case, in my view there is a failure on the part of the Authority to engage in a detailed consideration of the applicant’s circumstances so as to consider in real terms whether a relocation to Kabul is reasonably practicable for the applicant.
The Authority’s reference to the 2016 UNHCR guidelines at [42] of its decision does engage with the concerns raised by the applicant’s representatives and their own reference to those guidelines. However there is a lack of detailed consideration of the applicant’s circumstances and how he might practicably re-locate to Kabul given that he is uneducated, his only work experience was that of a farmer and he has no family connections to the area. The Authority does note that he will form part of a sizeable Sunni community who may provide support to the applicant however that does not address the other difficulties that the Authority has identified are facing the applicant. Those difficulties are made plain in the extracts from the UNHCR guidelines particularly paragraph [2.14].
The Authority acknowledges the circumstances and the difficulties of a person subsisting where there is a lack of family support, access to shelter and a lack of employment opportunities. Other than noting that the applicant might be able to obtain work in the construction industry utilising his skills as a farmer, the authority does not explain how this might happen or how he might overcome the identified difficulties facing him. With due respect to the Authority, the consideration given by the Authority to the applicant’s circumstances do tend to what Mortimer J referred to as a “broad brush approach” deprecated by her at [55] in MZANX.
It is accepted that the Authority took into account the possibility of the applicant being joined in Kabul by his wife and five children, however the Authority did not take into account the impact of that occurring (other than noting that it may cause him to be vulnerable to exploitation). There is no consideration as to how he might cope in a practical way without undue hardship if faced with those set of circumstances.
Whilst not dispositive of this application I also note that the Authority has not examined the security situation in Kabul for the purposes of considering the reasonableness of a relocation to Kabul.
For these reasons because of the view that the Authority has failed in its review function under section 473CC of the Act to properly consider the reasonableness of relocation to Kabul and had the Authority considered that question there is a realistic possibility of a different outcome on review and therefore the error was material and jurisdictional: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [45].
Conclusion
The Application for review filed 7 October 2017 and amended 5 September 2019 be allowed and the Immigration Assessment Authority decision made on 9 December 2016 should be set aside and in lieu a writ of certiorari issue quashing the decision of the Authority and that a writ of mandamus issue to the Authority to review the Delegate’s decision pursuant to section 473CC of the Act according to law.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 13 February 2020
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