AGM18 v Minister for Home Affairs

[2018] FCCA 1470

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1470

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider the entirety of the applicant’s claims – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – whether the Authority failed to consider whether there were exceptional circumstances to justify considering the new information – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: AGM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 146 of 2018

Judgment of: Judge Street

Hearing date: 6 June 2018

Date of Last Submission: 6 June 2018

Delivered at: Sydney

Delivered on: 6 June 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Ryburn Solictors

Counsel for the Respondents: Mr B Kaplan

Solicitors for the Respondents: DLA Piper

ORDERS

1. Grant leave to the applicant to rely upon the grounds in the amended application annexed to the applicant’s submissions filed on 28 May 2018 and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 146 of 2018

AGM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 15 December 2017 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an authorised maritime arrival on 17 November 2012. The applicant lodged the application for the Safe Haven Enterprise visa on 13 May 2016.

3. The applicant claimed to fear harm from his father’s cousins who had previously threatened the applicant and attacked his father for rejecting marriage arrangements between their families. On 1 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 1 March 2017, the Authority wrote to the applicant informing the applicant that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. The applicant through his migration agent representative took advantage of that opportunity and provided submissions and new information dated 20 July 2017, received by the Authority on 5 August 2017, which was expressly referred to in the Authority’s reasons.

2. That submission expressly referred to the delegate’s decision and put submissions in relation to the applicant’s home village. The Authority in its reasons identified the background to the visa application and had regard to the information provided by the Secretary under s 473CB of the Act. The Authority had regard to the applicant’s submissions insofar as they engaged with the delegate’s decision.

3. The Authority identified that the submission contained new information. The submission advanced a new claim that the applicant is now a devoted Christian. The Authority, in considering whether there were exceptional circumstances to justify considering the new information, referred to the prior interactions with the Department in which the applicant stated he was not a strict or devout Sunni Muslim. However, the Authority identified that the applicant’s disagreement with Islamic philosophy and the alleged conversion to Christianity since his arrival in Australia is new information.

4. The Authority noted the applicant acknowledged that the information about his conversion to Christianity was not before the delegate and that the applicant advanced a claim of poor advice that he was given in relation to that disclosure. It was suggested that had the claim been raised, it would have caused the delegate to doubt the applicant’s protection claims. The applicant alleged that his long-term uncertainty since arriving in Australia and his uncertain future led him to accept that erroneous advice. The Authority noted that the applicant had not provided any other explanation as to why he could not have provided this information earlier, nor why the information should be considered credible personal information.

5. In that regard, the Authority then referred to the applicant’s written statements and the applicant’s representative at the primary stage providing a detailed submission reiterating the applicant’s claims and providing supporting country information. The Authority referred to the applicant being represented at the Safe Haven Enterprise visa interview during which the importance of providing all of his claims was explained to the applicant. The Authority also referred to the fact that the applicant was asked if he had provided all his claims for protection and he had answered in the affirmative. The Authority further referred to the indication given that further information could be provided and that the applicant, through his representatives, did provide a post-interview statutory declaration responding to issues raised in the interview and providing further details in support of his case.

6. The Authority noted that there was no evidence to support the assertion that the applicant was given erroneous advice. The Authority took into account the applicant’s own evidence in the Safe Haven Enterprise visa application interview and post-interview statutory declaration, which provided details as to his claims. The Authority also took into account the comprehensive nature of the applicant’s representative’s submissions and their active representation before, during and after the Safe Haven Enterprise visa interview. Given these factors, the Authority was satisfied that the applicant understood the importance of providing all of his claims for protection and the Authority was satisfied the applicant was adequately represented in the primary process. The Authority considered it implausible that had the applicant mentioned these details, including his disagreement with Islamic philosophy, his changed religion, and his home area being a former stronghold for a particular organisation, to his representative that he would have been advised against providing the information to the delegate.

7. The Authority did not accept the applicant’s feelings of uncertainty or any other reasons leading to the adverse influence by someone else. The Authority did not accept the applicant’s proffered explanation as to why he did not provide the information before the delegate made the decision. The Authority also identified having significant doubts about the credibility of the applicant’s claims. It was in these circumstances that the Authority found that the applicant did not satisfy the Authority as to either of the matters in s 473DD(b) of the Act. The Authority noted no other submissions were offered in explanation beyond the asserted erroneous advice, which was not accepted by the Authority to support there being exceptional circumstances to justify considering the new information and the Authority found there was no such explanation apparent on the material before the Authority. The Authority also referred to issues raised in respect of the applicant’s representation. It was in those circumstances the Authority found the applicant had failed to satisfy the Authority that there were exceptional circumstances to justify considering the new information.

8. The Authority took into account new country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims including that in about March 2012, after the applicant had returned to his home village, his cousins approached the family to propose two marriages. The cousins suggested the applicant’s second sister marry one of their sons and in exchange they would give one of their daughters to marry the applicant.

9. The applicant did not agree to his proposed marriage and the applicant’s father also declined the proposal in respect of his daughter, stating that his daughter was still a minor and wanted to continue her studies. The Authority referred to the cousins sometime after approaching the family again and requesting the older sister of the applicant marry one of their sons and again the applicant’s family declined.

10. The applicant alleged that in or around June 2012, while the applicant was visiting Kabul some of his cousins tried again to effect their proposals and maintained the women should not study and that the applicant’s father again declined the requests and it was alleged the cousins left very upset.

11. Reference was made by the applicant to believing that these marriages were to pressure the family into giving them more rights over the family land. The applicant alleged that a few days after the last visit, the family found a written threat at their house, which they believe was from the cousins threatening to kill the applicant and it was alleged that the applicant’s father told the applicant to stay in Kabul city and that after the applicant left Afghanistan, his sisters went to stay in Kabul city for a few months and then returned to the village.

12. The applicant alleged that in or around September 2015, the applicant’s family moved to his mother’s village and that in or around November 2015, the applicant’s father sent his sisters to live with their maternal aunt as refugees in Pakistan and that during this time the applicant’s family remained in their home village. The applicant alleged that after his Safe Haven Enterprise visa interview, he spoke to his father and learned that the reason the family had moved to a different location in Pakistan was because the same cousins had attacked the father. The applicant alleged they attacked his father in his home village with a knife and other villagers defused the situation. The applicant alleged that they threatened to kill the applicant’s father and family and that his father managed to run away and the father believes that they are still trying to get the sisters and the land.

13. The applicant also alleged that the father had tried to resign from his work to make it more difficult for the cousins to find him but the employer would not let him do so. The applicant also alleged that the cousin has threatened another family who proposed marriage to the applicant’s sisters. The applicant fears that if he returns to Afghanistan he will be seriously harmed and/or killed by his father’s cousins, who are supporters of Gulbuddin Hekmatyar and/or by the home villagers or Islamic insurgent groups due to his profile as an opponent of arranged/forced marriage and cultural and religious rules in support of women’s educations, an imputed atheist, a foreign spy, and a son of a government employee.

14. The Authority found the applicant’s parents reside in Kabul and that is to where the applicant would return and that the applicant’s father continues to work for a particular bank. The Authority considered the applicant’s most substantial ties in Afghanistan are in Kabul and considered that the applicant would return to and seek to establish himself in Kabul City as his home area. The Authority also referred to the applicant’s home village being 25 to 30 kilometres outside Kabul. The delegate had found that the applicant could relocate away from his home area and that it was reasonable for the applicant to do so in finding that the applicant failed to meet the criteria to be granted a protection visa.

15. The Authority referred in detail to the applicant’s claims in relation to his cousins. The Authority found the applicant’s reference to his father’s cousins being connected with the Hekmatyar or the Taliban to be vague and unconvincing and found the applicant’s evidence in that regard to be obfuscating. The Authority did not accept that there is any connection between the cousins and Hekmatyar or Hezb-e-Islami, nor with any anti-government or insurgent group.

16. The Authority referred to a letter from the cousins. The Authority had concerns as to the letter because there was no indication any members of the family had ever communicated in Pashto. The Authority considered it implausible that the applicant, a highly educated young man who had only recently returned to the village and was suddenly warned to stay in Kabul, would not seek to ascertain further details about the threat issued against him.

17. The Authority noted the applicant’s claims not to have an interest in the current marital status of his father’s cousin’s sons who had been the intended betrothed for his sisters. The Authority noted the applicant said he did not know and that it was a matter in which he was not interested since it was far off and out of his reach. The Authority considered it implausible that the applicant would be uninterested given consequences that he claimed flowed from rejecting the marriage proposals for the sons and which he claimed is still such an issue it will lead to his being harmed upon return.

18. The Authority identified concerns about the plausibility of the threat being issued against the applicant as opposed to the father. The Authority did not accept that the cousins have ever viewed the applicant as a person primarily responsible for the marriage rejection. The Authority did not accept that they authored the letter and, given the Authority’s concerns, did not accept the applicant’s belief they did.

19. The Authority accepted there had been a dispute between the applicant’s family and the applicant’s father’s cousins and that that was part of the reason the applicant’s family moved out of the village in 2015. The Authority was prepared to accept that the marriage rejection was still an issue between the families, however the Authority noted the applicant has made several references to a disagreement over land and the Authority found that there may have been other issues at play between the families beyond rejected marriages, which led to the incident involving the applicant’s father, which the Authority was prepared to accept occurred.

20. The Authority also took into account the applicant’s sisters’ relocation to Pakistan and that the applicant stated they went there as refugees because the father believed the cousins still wanted to marry them to their sons, particularly as the cousins had threatened another family who had proposed marriages for the sisters. The Authority was prepared to accept the applicant’s father decided to remove the sisters from the country. The Authority was not satisfied on the country information about the prevalence of violence resulting from forced marriage situations applies in the situation of a one-sided proposal being rejected by the other side.

21. The Authority found the applicant’s parents are still residing in a particular location. The Authority found there was no evidence that the cousins, any other villagers, or any insurgents have sought to locate the applicant, his parents, or even the applicant’s sisters since their relocation. The Authority was satisfied that the cousins could have done so had they been so inclined. The Authority referred to the location of the village and was satisfied the applicant’s parents still live in reasonably close proximity to the region. The Authority found there was nothing before the Authority to indicate the applicant’s mother’s origins were not known to the other members of the extended family.

22. In relation to where the parents were now residing, the Authority also referred to the fact that according to the applicant, his father had been working for the Afghan government in respect of a particular bank for approximately the last twenty years. The Authority referred to the applicant being asked at the Safe Haven Enterprise visa interview if people knew about his father’s work for the government and the applicant stated that some of his friends knew and his cousins might know.

23. The Authority, while accepting that the applicant’s father may have downplayed his role and that the applicant has avoided discussing his father’s employment, was not satisfied that his father has actively sought to conceal his employment from other family members. Taking this into account and the long period over which the applicant had been employed by the government while still living in his home village where one of his cousins lives and would have associations with other villages, the Authority considered it implausible that the cousins would not be aware of his work and his workplace in Kabul.

24. The Authority considered it implausible that the cousins would have knowledge of the father’s travel but not know he works for the government in Kabul. The Authority was satisfied the cousins have knowledge of the applicant’s father’s employment and that this would have also enabled them to locate the applicant’s parents. The Authority was not satisfied that any problems the cousins have with the applicant are such that they have maintained any interest in the applicant or tried to ascertain his whereabouts. The Authority found that the cousins would be aware of the applicant’s absence from the area and possibly from the country and that this could be a reason the cousins had not approached the parents in Kabul.

25. The Authority referred to the applicant’s claim that he is at greater risk than his father. However, the Authority found that it did not accept the cousins would have blamed the applicant over his father in relation to the marriage rejections. Since the rejections in respect of the marriage proposal, the Authority noted the applicant’s father has continued to work, made the arrangements for the family’s relocation, and on the evidence, still has control of the family land in the home village. Taking those factors into account, the Authority did not accept that the applicant’s father’s older age has protected him from any ongoing problems with his cousins.

26. The Authority did not accept that the cousins viewed the applicant as the person primarily responsible for the marriage rejection and did not accept the applicant’s claims that he would be at greater risk than his father. The Authority found that if any members of the applicant’s family were to be harmed by the cousins, it would have been his father. The Authority did not accept that knowledge of the applicant’s absence is why the cousins have not sought to approach the father in Kabul. The Authority was not satisfied the cousins had sought to harm or even locate any member of the applicant’s family in the past two years.

27. The Authority also took into account the suggestion that the applicant’s problems extended beyond the marriage proposals. The Authority found there was no evidence of the cousins attempting to take over the land, dispute ownership, or make any move, aggressive or otherwise, towards The Authority did not accept the applicant would face a real chance of harm from the cousins or anyone in relation to the rejected marriage proposals or the associated accusations or disrespecting culture, tradition and religious rules upon return. The Authority did not accept the applicant would face a real chance of harm upon return in relation to any family tension over landownership or other claims to land. The Authority did not accept the applicant faced a real chance of harm from the cousins or their respective family members for any reason.

1. The Authority considered the applicant’s other claims and made adverse findings in that regard. The Authority also took into account the applicant’s alleged mental distress. The Authority took into account the full account of the dispute with the cousins and rumours they circulated, the threat letter, the attack on the applicant’s father and his father’s role, the applicant’s support for education, and the applicant’s profile as a Tajik Sunni male who talks to troops and has suffered mental stress and would be returning after several years as a returnee asylum seeker from the West.

2. The Authority accepted that the applicant may face some discrimination. The Authority is not satisfied it would amount to or lead to serious harm. The Authority was not satisfied the applicant faced a real chance of being killed or otherwise suffering serious harm in Kabul from any individual, group, or organisations. The Authority was not satisfied there was a real chance that the applicant would be seriously harmed in generalised/insurgent or criminally motivated violence in Kabul, or in accessing Kabul. The Authority considered the applicant’s personal circumstances and was satisfied that it would be reasonable for the applicant to remain in Kabul City, where his family reside and where he will not face a real chance of serious harm.

3. The Authority considered the applicant’s claims individually and cumulatively and was not satisfied the applicant’s fear of persecution is well-founded. The Authority found the applicant failed to meet the definition of a refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

4. The Authority found that there are not substantial grounds t for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The applicant claimed that his father’s brother’s sons wanted the applicant’s sister to marry one of the male cousins and the applicant to marry one of the female cousins, but the applicant and his father disagreed, and the cousins threatened the applicant and his father as a result. An integer of the applicant’s claims was a fear of harm from the cousins by virtue of the cousins, on becoming aware of the applicant’s return to Afghanistan, renewing their efforts for the applicant to marry one of the female cousins. The Immigration Assessment Authority (“the IAA”) failed to deal with this aspect of the applicant’s claims. This was a jurisdictional error.

   2. The applicant grew up in Shewaki village and completed a university degree at Herat University”, following which he returned to Shewaki. The Minister’s delegate found that “the applicant faces a real chance of suffering serious harm amounting to persecution if he is returned to his home area in Kabul”, but the applicant could relocate to Herat. The IAA, in contrast, found that the applicant could relocate to Kabul City. The IAA did not get, or consider getting, further information from the applicant concerning whether the applicant could relocate to Kabul City. In the circumstances, it was legally unreasonable for the IAA not to consider getting further information from the applicant concerning whether the applicant could relocate to Kabul City.

   The IAA committed jurisdictional error in paragraph 9 of its decision by failing to adequately consider whether, in relation to the applicant’s claim about converting to Christianity, there were exceptional circumstances to justify the consideration of new information pursuant to s 473DD(a) of the Migration Act, and whether the matters in s 473DD(b) were satisfied.

Ground 1

1. Mr Zipser of counsel on behalf of the applicant submitted that the Authority had failed to make findings dispositive of the whole of the applicant’s claims in relation to the applicant’s cousins. Mr Zipser submitted that upon the applicant’s return the cousins may renew their interest in the applicant in respect of the marriage proposals in dispute. The Authority’s reasons reflect a close and thorough consideration of the applicant’s claims to fear harm upon return to Afghanistan from his cousins. The Authority provided logical and rational reasons in support of the adverse findings as summarised above. Those adverse findings were open and cannot be said to be illogical or unreasonable. Those adverse findings were dispositive of the applicant’s claims to fear harm from his cousins.

2. The characterisation in the submissions advanced by Mr Zipser on behalf of the applicant of renewed efforts for the applicant to marry one of his female cousins was, I find, subsumed within the adverse findings made by the Authority. Characterisation of renewed interest is no more than a different verbal formulation restating the claim by the applicant to fear harm upon return to Afghanistan from his cousins. That was the subject of clear and dispositive findings made by the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that the Authority had made a different finding in relation to the applicant’s ability to remain in Kabul to that that the delegate had made. Mr Zipser submitted that the Authority’s finding in relation to the applicant’s ability to remain in Kabul where he would not have a well-founded fear of persecution and where he would not in the reasonably foreseeable future suffer significant harm, was one departing from the finding of the delegate and one in respect of which there was legal unreasonableness on the part of the Authority by failing to consider to exercise the powers under s 473DC to invite the applicant to put on submissions or new information in relation to his ability to establish himself in Kabul.

2. Mr Zipser’s submissions candidly acknowledged that the applicant’s statutory declaration addressed the applicant’s ability to reside in Kabul, as did the submissions provided to the delegate and the issue of the applicant returning to his home village was identified in the submissions advanced to the Authority. This is not a case where there was an issue of a new kind before the Authority in respect of which the Authority was required, as a matter of legal reasonableness, to expressly consider or to exercise its powers under s 473DC. There was no legal unreasonableness by the Authority in failing to invite the applicant to provide further information in respect of his ability to remain in his home region being Kabul.

3. On the face of the material before the Court, the applicant returning to and remaining in Kabul was a matter to which the applicant was alive and which was addressed in both his evidence provided to the delegate and the submissions, as well as in the material provided to the Authority. No legal unreasonableness is made out in relation to the Authority not seeking further information from the applicant in relation to his ability to reside in Kabul. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Zipser submitted that the Authority did not consider the significance of the new information in relation to the applicant’s alleged conversion to Christianity and that in those circumstances the Authority had adopted erroneously narrow meaning of exceptional circumstances.

2. The Authority’s reasons for rejecting the new claim of the applicant’s arrangement of conversion to Christianity has been summarised above and the Authority engaged in an express consideration of both limbs of s 473DD(b) of the Act. Further, the Authority’s reasons reflect a consideration of the significance of new information, having identified its nature and addressed in detail the reasons why the Authority was not satisfied it was credible personal information and was not satisfied with the applicant’s explanation as to why the information could not have been provided before to the Minister. Mr Zipser also submitted that the Authority’s reference to having doubts about the credibility of the applicant’s claims in relation to the new claims, was not allegedly the subject of further reasoning. That proposition is without substance.

3. The Authority clearly identified concerns in relation to the credibility of the claims in light of the failure to raise the claims earlier and rejection of the applicant’s explanation as to why it was not raised earlier. Mr Zipser submitted that there had been a failure to engage in an active intellectual process with the submissions advanced on behalf of the applicant. The Authority’s reasons, as summarised above, clearly address the applicant’s explanation for the failure to raise the same and clearly referred and identified logical and rational reasons why the Authority did not accept that proposed explanation. The Authority’s reasons, as summarised above, reflect an active intellectual engagement and an intellectual process in considering whether the new information met the requirements under s 473DD of the Act. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 August 2018