AET18 v Minister for Home Affairs

[2023] FedCFamC2G 180

Federal Circuit and Family Court of Australia

(DIVISION 2)

AET18 v Minister for Home Affairs [2023] FedCFamC2G 180

File number(s):	PEG 24 of 2018
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	9 March 2023
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – Afghan national – where the Tribunal found that the applicant could reasonably relocate to another part of Afghanistan – consideration of whether Authority considered applicant’s claims to fear harm due to ethnicity, language spoken and having lived in a western country – consideration of whether Authority considered applicant’s claims that relocation would not be reasonable – no jurisdictional error established – application dismissed with costs.
Cases cited:	ADW18 v Minister for Immigration & Border Protection [2020] FCCA 895
Division:	Division 2 General Federal Law
Number of paragraphs:	59
Date of last submission/s:	17 November 2022
Date of hearing:	17 November 2022
Place:	Melbourne
Solicitor for the Applicant:	Mr B Amani of Amani Lawyers
Counsel for the First Respondent:	Mr J Barrington
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

PEG 24 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AET18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	9 March 2023

THE COURT ORDERS THAT:

1.The applicant’s amended originating application filed on 1 November 2022 be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 13 December 2017, affirming a decision of a delegate for the then Minister for Home Affairs (‘the Minister’), refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).

   Background

2. The applicant is an Afghan national of Tajik ethnicity and of the Sunni Muslim faith.[1]

   [1] Authority decision record dated 13 December 2017 at paragraph [1].

3. The applicant also suffers from Hepatitis B which requires him to undergo regular medical check-ups and interventions.[2]

   [2] Authority decision record dated 13 December 2017 at paragraph [57] and following.

   Application for SHEV on 24 February 2017

4. The applicant lodged a valid application for a SHEV on 24 February 2017.[3]

   [3] Court book at pages 22 to 72.

5. Attached to this application is a ‘Statement of Protection Claims’, in which the applicant sets out his claims for protection.[4]  The applicant sought protection from the Taliban on the basis of his ethnicity and the fact that he speaks Dari rather than Pashtun.[5]  He also states that he fears harm on the basis of his Sunni religion.[6]

   [4] Court book at pages 60 to 65.

   [5] Court book at pages 63 and 65.

   [6] Court book at page 65.

6. The applicant also claims to fear harm as a result of a data breach which occurred whilst the applicant was in immigration detention in February 2014.[7]

   [7] Authority decision record dated 13 December 2017 at paragraph [14].

7. On 21 April 2017, the applicant also attended for an interview before the delegate.[8]

   [8] Court book at page 82 and following.

8. On 24 May 2017, the applicant was notified by letter that a delegate of the Minister had refused his application for a SHEV.[9]

   [9] Court book at page 115 and following.

   Referral to the Authority on 29 May 2017

9. On 29 May 2017, the delegate’s decision was referred to the Authority for review.[10]

   [10] Court book at page 137 and following.

10. On 19 June 2017, the applicant, via his representative, provided a written submission to the Authority, setting out his reasons for seeking review of the delegate’s decision.[11]

    [11] Court book at pages 152 to 157.

11. On 13 December 2017, the applicant was notified that the Authority had determined to affirm the decision under review to refuse his application for a SHEV.[12]

    [12] Court book at page 162 and following.

    Authority decision

12. The Authority’s decision record is at pages 166 to 185 of the court book.

13. In its decision, the Authority accepted that:

    (a)the applicant was a Sunni and a Tajik from Baghlan province;[13]

    (b)the applicant was a credible witness and had largely been consistent in his claims;[14]

    (c)in 2001, his father and grandfather had been kidnapped and imprisoned and his cousins and aunt had been killed;[15]

    (d)in 2011, the applicant was kidnapped and held for ransom;[16] and

    (e)following the kidnapping incident, the applicant and his family were scared and left for Pakistan.[17]

    [13] Authority decision record dated 13 December 2017 at paragraph [19].

    [14] Authority decision record dated 13 December 2017 at paragraph [20].

    [15] Authority decision record dated 13 December 2017 at paragraph [23].

    [16] Authority decision record dated 13 December 2017 at paragraph [27].

    [17] Authority decision record dated 13 December 2017 at paragraph [28].

14. The Authority further found, however, that once the applicant was released after the ransom was paid, the applicant and his family were no longer of any further interest to the Taliban and also that the applicant did not have any ongoing adverse profile with the Taliban as a result of the kidnapping incident.[18]

    [18] Authority decision record dated 13 December 2017 at paragraph [27].

15. The Authority also found that although it was prepared to accept that the applicant was approached by the Taliban to join them,[19] it did not accept that the applicant was subject of forcible recruitment by the Taliban.[20]

    [19] Authority decision record dated 13 December 2017 at paragraph [26].

    [20] Authority decision record dated 13 December 2017 at paragraphs [31] to [32].

16. The Authority then considered the applicant’s claim that he feared harm due to his Tajik ethnicity and his religion and concluded that he did not face a real chance of harm on these grounds, either now or into the foreseeable future.[21]  The Authority further considered and dismissed the applicant’s claim to fear harm because he looked like a Hazara.[22]

    [21] Authority decision record dated 13 December 2017 at paragraphs [33] and [34].

    [22] Authority decision record dated 13 December 2017 at paragraph [35].

17. The Authority also considered and rejected the applicant’s claim to fear harm as a returned asylum-seeker,[23] as well as his claims to fear harm as the result of his information being included in a data breach in February 2014.[24]

    [23] Authority decision record dated 13 December 2017 at paragraph [36].

    [24] Authority decision record dated 13 December 2017 at paragraph [37].

18. The Authority then turned to consider the applicant’s claim to fear harm as a person who has lived in a western country,[25] and concluded at paragraph [40] that the applicant did face a small but real chance of serious harm on the basis of an imputed political opinion arising from his time in the west and/or ‘his westernised appearance and persona if he returns to his province in Afghanistan’.

    [25] Authority decision record dated 13 December 2017 at paragraphs [38] to [40].

19. Having reached these conclusions, the Authority then went on to consider whether relocation to another part of Afghanistan was reasonable.  At paragraph [50], the Tribunal concluded that the applicant would not be pursued to or in Kabul or that he would face a real chance of harm in Kabul, or elsewhere in Afghanistan, as a result of his refusal to join the Taliban or his past encounter with the Taliban.

20. At paragraph [51], the Authority found that the applicant did not face a real chance of harm in Kabul as a Tajik, a Sunni or a Tajik Sunni.  The Authority considered information provided by the applicant about risks to civilians in Kabul as a result of attacks in that city and concluded that whilst there was a chance that the applicant might be inadvertently hurt as a bystander caught up in an attack, the generalised violence was remote and he did not face a real chance of suffering harm as a result of such generalised violence in Kabul.[26]

    [26] Authority decision record dated 13 December 2017 at paragraph [52].

21. The Authority then went on to consider the applicant’s particular individual circumstances and how he might adapt to living in Kabul given his past experience living in a rural environment, his limited education and skillset, his medical conditions and the fact that he is a Dari speaker.[27]   The Authority ultimately found none of these factors weighed against the reasonableness of the applicant’s relocation to Kabul.[28]

    [27] Authority decision record dated 13 December 2017 at paragraph [53] and following.

    [28] Authority decision record dated 13 December 2017 at paragraph [63].

22. The Authority therefore concluded at paragraph [64] that the applicant did not satisfy the criteria in section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

23. The Authority then considered whether the applicant engaged Australia’s complementary protection obligations and concluded that whilst there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to Afghanistan, he would face a real risk of harm, he did not face such risk if he were to relocate to Kabul.[29] On this basis, the Authority concluded that the applicant also did not meet the requirements of s 36(2)(aa) of the Act.[30]

    [29] Authority decision record dated 13 December 2017 at paragraphs [69] to [86].

    [30] Authority decision record dated 13 December 2017 at paragraph [87].

    Proceedings in this court

24. On 15 January 2018, the applicant filed his application for judicial review in this court, accompanied by an affidavit sworn on 11 January 2018.

25. On 1 November 2022, the applicant filed an amended originating application, as well as written submissions in support of his application for review.

    Grounds of review

26. In his amended initiating application, the applicant raises two grounds of review.

27. I will turn to consider each ground in turn.

    Ground 1

28. By ground 1, the applicant asserts that the Authority failed to ‘properly consider’ the applicant’s claims for protection.  Relevantly, the applicant states that the Authority did not properly consider his claims to fear harm:

    (a)as a Dari speaking Tajik person ‘facing a serious life threat from the Taliban in Afghanistan which would result in his death’; and

    (b)as an Afghan living in a western country for several years ‘therefore being … in the list of the Taliban to be targeted and killed’.

29. To the extent that this ground asserts that the Authority did not consider these matters, it is apparent on the face of the Authority decision record that these matters were indeed given consideration.

    Claims to fear harm as a Dari speaking Tajik person

30. The Authority considered the applicant’s claims arising from his Tajik ethnicity at paragraph [33] of its decision record.  In that paragraph, the Authority clearly articulated the applicant’s claims to fear harm on this ground.

31. Earlier at paragraph [19], the Authority accepted that the applicant was a Tajik from the Baghlan province.  Relevantly, at paragraph [33], the Authority noted that, other than the incidents raised by the applicant in which he says that members of his family were arrested in 2001 and then that in 2011, he was kidnapped, beaten and held for a ransom, the applicant did not raise any other specific incidents of alleged harm arising from his Tajik ethnicity.

32. The Authority then went on at paragraph [33] to consider country information regarding Tajiks in Afghanistan.  Relevantly, the Authority noted that Tajiks were the second largest ethnic group in Afghanistan.

33. Similarly, the Authority considered the claims made regarding the fact that he applicant spoke Dari, rather than Pashtun.  Relevantly, at paragraph [33], the Authority noted that the bureaucracy has been traditionally dominated by the Tajik because of their Dari language skills.

34. The Authority also considered the risk to the applicant arising from his ethnicity (as a Tajik) and from his language (Dari) if he were to relocate to Kabul and concluded that he would not face any risk of harm on either ground in Kabul.[31]

    [31] Authority decision record dated 13 December 2017 at paragraphs [49] and [62].

35. On that basis, the Authority drew conclusions about the risk, or lack thereof, to the applicant arising from his ethnicity and language spoken.  In these circumstances, a claim that the Authority did not consider those matters cannot be sustained.

    Claims to fear harm from living in a western country for several years

36. Similarly, the second issue raised in ground 1, namely that the Authority failed to consider the risk of harm to the applicant as an Afghan who had lived in a western country for several years, is not made out on a fair reading of the Authority’s decision record.

37. At paragraph [36], the Authority squarely identifies this claim and then deals with it by reference to country information at paragraph [38]. In this regard, the Authority refers to specific country information which raises issues about individuals who have lived in western countries and who are then perceived as being ‘westernised’ and targeted as such.

38. The Authority then goes on at [39] to accept that:

    39.… if he was to return to Baghlan, he may be distinguishable from other young men in the area.  … I am satisfied if he returns to this small village, his return is more likely to be noted and remarked upon by the local villagers and further, he may be more readily distinguishable from the local community as someone who has been in the west.

39. It is on this basis that at paragraph [40], the Authority concludes that the applicant faces a real, albeit small, chance of facing serious harm ‘on the basis of his imputed political opinion arising from his time in the west and/or westernised appearance and persona if he returns to his province in Afghanistan’.

40. The Authority then went on at paragraphs [41] to [63] to consider the risk of harm arising from the fact that the applicant had lived in the west for some time if he were to relocate to Kabul and concluded that the same risk did not arise.

41. The Authority therefore did consider each of the matters raised by the applicant in ground 1 in the required sense, namely it gave active considerations to these claims.

42. Moreover, to the extent that ground 1 takes issue with the weight to be given to the applicant’s claims, this invites the court to engage in impermissible merits review and does not disclose any jurisdictional error.

43. For each of these reasons, ground 1 is not made out.

    Ground 2

44. By ground 2, the applicant asserts that the Authority failed to consider the applicant’s objections to relocation.  In particular, the applicant claims that the Authority failed to consider the applicant’s claims that relocation was not appropriate in circumstances where the Taliban was present throughout Afghanistan and that he could be found by the Taliban anywhere in Afghanistan.

45. Again, the Authority did consider these matters.  Relevantly, at paragraphs [43] to [48], the Authority considered the risk to the applicant in Kabul, including from the Taliban.  At paragraph [43], the Authority refers to the country information about attacks carried out in Kabul by the Taliban ‘against targets linked to the Afghanistan government or international security forces’. At paragraph [41], the Authority notes that the applicant’s written submissions refer to Afghanistan being like a ‘battlefield’ and that relocation to Kabul would therefore not be reasonable. Similar references to the applicant’s submissions about the risks in Kabul are made again at paragraph [45].

46. The Authority then considers the country information about the risks in Kabul and concludes that whilst there was a ‘possibility’ that the applicant might be caught up in an incident in Kabul, he would not personally be targeted.[32]

    [32] Authority decision record dated 13 December 2017 at paragraphs [48].

47. Moreover, at paragraph [50], the Authority specifically addressed the applicant’s claims to fear harm from the Taliban in Kabul.  It noted that he had been harmed by the Taliban in the past, although it found that these were opportunistic and isolated events.  Moreover, the Authority expressly went on to say:

    50.… I am not satisfied that the applicant will now be sought by the Taliban over his refusal to join and I do not accept that the Taliban has any ongoing adverse interest in him.  I am not satisfied that he would be pursued to or in Kabul or that he would face a real chance of harm in Kabul or anywhere else in Afghanistan on account of his refusal to join the Taliban, or his past encounters with the Taliban.

48. These reasons demonstrate that the Authority did consider his claims that the Taliban were present and active in Kabul and that they could find him anywhere.  Ultimately, in concluding that he was not of interest to the Taliban, the Authority rejected the premise of this submission, namely that the Taliban would be looking for him.

49. Again, to the extent that ground 2 invites the court to conclude that the Authority did not give enough consideration to the applicant’s submissions that he was at risk of harm from the Taliban in Kabul, this invites the court to engage in impermissible merits review.

50. For each of these reasons, ground 2 is not made out.

    Other relevant matters

51. The Minister as a model litigant has brought to the court’s attention another matter which may be relevant to the applicant’s claims, but which the Minister submits does not give rise to any jurisdictional error.  The applicant arrived in Australia with two of his brothers, each of whom have also submitted an application for a protection visa.

52. The same member considered the three applications and rejected each of them.  An application for judicial review against the Authority’s decision was also lodged by each of the brothers.  The matter of one of the brothers came before Judge Kendall in April 2020.[33]

    [33] ADW18 v Minister for Immigration & Border Protection [2020] FCCA 895 (‘ADW18’).

53. In that case, Judge Kendall found that the Authority had fallen into error in failing to put ‘new information’ to the applicant in that case, ADW18, pursuant to section 473DE(1) of the Act. The ‘new information’ relied upon in that case was information about the applicant in the present proceedings, i.e. AET18.

54. It is submitted that the error found to have arisen in ADW18 does not arise in this case.  I agree with this submission.

55. At paragraph [69] of his Honour’s decision in ADW18, Judge Kendall says:

    69.      At [11], the IAA stated:

    The applicant’s oldest brother, who he claims was kidnapped by the Taliban, also has an application before me (applicant IAA 17/02769).  As part of the applicant’s claims rely on incidents directly involving applicant IAA 17/02769 and further as much of applicant IAA 17/02769’s evidence relates to a period of time when the present applicant was aged about six, I consider that this information is relevant to the review before me and I have obtained it for the purposes of this review.  Further I am satisfied that there are exceptional circumstances to justify considering this information.

1. His Honour went on to find that in circumstances where ‘new information’ was obtained by the Authority and considered, and where it played a part in the ultimate determination of the matter then before it (i.e. in relation to ADW18), the failure to put that information to the applicant in ADW18 led the Authority in that case into error in that it failed to afford the applicant procedural fairness.

2. No similar error arises in this case.  There is no suggestion that anything in either of the present applicant’s brothers’ claims was considered by the Authority in the present matter.  There was therefore no failure to put new information to the present applicant as arose in ADW18.

   Conclusion

3. Having reached the conclusion that the Authority has not engaged in any jurisdictional error, the court is required to dismiss the applicant’s application with costs.

4. I therefore make the orders sought by the respondent in its response, and as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       9 March 2023