AGM18 v Minister for Home Affairs
[2018] FCA 1951
•20 November 2018
FEDERAL COURT OF AUSTRALIA
AGM18 v Minister for Home Affairs [2018] FCA 1951
Appeal from: AGM18 v Minister for Home Affairs and Anor [2018] FCCA 1470 File number: NSD 1123 of 2018 Judge: LEE J Date of judgment: 20 November 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether the primary judge erred in failing to conclude that the Immigration Assessment Authority failed to deal with an aspect of the appellant’s claim Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Date of hearing:
20 November 2018
Registry:
New South Wales
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
20
Counsel for the Appellant:
Mr B Zipser
Solicitor for the Appellant:
Ryburn Solicitors
Counsel for the First Respondent:
Mr B Kaplan
Solicitor for the First Respondent:
DLA Piper Australia
Counsel for the Second Respondent:
The Second Respondent entered a submitting notice, save as to costs
ORDERS
NSD 1123 of 2018 BETWEEN: AGM18
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
20 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from the transcriptLEE J:
There is one ground of appeal by which the appellant, AGM18, appeals from orders made by the Federal Circuit Court to dismiss an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), to affirm a decision of the delegate of the first respondent, the Minister for Home Affairs (Minister), to refuse the appellant a visa. That ground of appeal is as follows:
The appellant claimed in his protection visa application before the [Authority] that his father’s brother’s sons wanted the appellant’s sister to marry one of the male cousins and the appellant to marry one of the female cousins, but the appellant and his father disagreed, and the cousins threatened the appellant and his father as a result. An integer of the appellant’s claims was a fear of harm from the cousins by virtue of the cousins, on becoming aware of the appellant’s return to Afghanistan, renewing their efforts for the appellant to marry one of the female cousins. The [Authority] failed to deal with this aspect of the appellant’s claims. This was a jurisdictional error. [The primary judge] in the Federal Circuit Court found that the appellant did not commit a jurisdictional error in this manner. [The primary judge] erred in this regard.
What is immediately obvious is that this appeal calls for consideration of the well-trod ground as to the principles applicable in relation to an alleged failure to consider a claim. It is trite that a failure to make a finding on a substantial, clearly articulated argument relying upon established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24]–[25] (Gummow and Callinan JJ, Hayne J agreeing). It is further well established that such an error can arise in circumstances where an unarticulated claim is raised clearly or squarely on the relevant material: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18–21 [58]–[61] and [63] (Black CJ, French and Selway JJ).
There was no dispute between the parties that the principled way for me to approach the question as to whether the primary judge erred in failing to find jurisdictional error on behalf of the authority, is to engage in a two-stage process. First, to consider whether the appellant made the claim it is contended that he made, in other words, did the claim referred to in the notice of appeal arise clearly or squarely on the material before the Authority; and, secondly, even if the asserted claim arose on the material before the Authority, was it one that a fair reading of the reasons of the Authority indicates was rejected or, relatedly, was it subsumed by findings of greater generality which the appellant does not challenge either in this Court or before the primary judge?
Mr Zipser of counsel, in the course of his careful and comprehensive submissions on behalf of the appellant, took me, in some detail, to those parts of the material before the Authority in which it is said it is apparent that the alleged claim clearly or squarely arose. In the statutory declaration made by the appellant on 23 March 2016, the following appears under the heading “My father’s cousins try to arrange a forced marriage”:
12.In or around March 2012, when I had returned to Shewaki, two of my father’s cousins (my paternal uncle’s sons) came to ask for my second sister Meena to marry the elder cousin’s eldest son. I had heard of these cousins and seen them at family gatherings, but I did not know them well. The elder cousin lived in Logar Province. He was called Mohammed Ajan, and his eldest son was called Osman. The younger cousin lived in Shewaki, and they came with another villager from Shewaki. My father’s cousins were supporters of Gulbuddin Hekmatyar.
13.At that time, Meena was only 17. My father politely rejected their proposal, saying that Meena was still a minor and wanted to continue her studies.
14.After some time, they came back with a new offer to exchange daughters. My family would give Meena to marry Osman, and they would give one of their daughters to marry me. If my family did not want to give Meena, my family could give my eldest sister Reena instead.
15.At that time, Reena was 19. I did not know their family or their children well. I had also just finished university and wanted to start my career. My father again politely rejected their proposal, saying that Reena also wanted to continue her studies, and I did not agree to it. According to traditional cultural and family rules, my father would speak on behalf of the family about marriage affairs, but he would always consult with me.
16.In or around May 2012, when I was visiting Kabul City, my father’s cousins came back to try to change our minds. They said that women should not study. My father continued to reject their proposal, and he told me that they were very upset when they left. I believe that they wanted to marry one of my sisters so that they could use her to pressure my family to give them more rights over our land.
17.After that, my father’s cousins began spreading rumors, which made their way back to my mother. They told the villagers that Meena and Osman had been promised to each other by their parents and that Meena was their honor. They told the villagers that I was against traditional cultural and religious rules. They said that I had become an atheist, and that when I was at university in Herat, I had been working as a spy for foreigners.
As is evident from the above, there were three approaches between March 2012 and May 2012 in relation to an arranged marriage. It is important to note, however, that the first approach was somewhat different from the last two approaches. By April 2012, the appellant contends that there was an offer made to “exchange daughters”, that is, the appellant’s family would “give” a daughter to marry one of the cousins, and that, in return, the cousins would “give one of their daughters to marry” the appellant.
Although the father, in accordance with traditional cultural and family norms, was the conduit for communicating the refusal on behalf of the family, the contention of the appellant was that this was the subject of prior consultation with him and that the cousins (given the matters referred to in [17] of the statutory declaration) were apparently aware of this fact, hence causing them to make a number of serious allegations against the appellant. The other point to note from the above extract, is that when the appellant’s father continued to reject the “exchange” proposal, it appears the cousins were “very upset”.
Another part of the statutory declaration merits being set out and that is what appears, at [32], under the heading “Fear of Return”. Here the appellant says:
First, I am afraid of my father’s cousins. They threatened to kill me, and they spread rumors about me. I am afraid that they would kill me or seriously physically harm me. I do not know if they are still supporting Gulbuddin Hekmatyar or another Islamist insurgent group.
A further statutory declaration was made by the appellant on 9 November 2016. This occurred following an interview with the delegate and after the appellant had been in further contact with his father to try to find out more information about his family’s situation in Afghanistan. At [5] of that statutory declaration, reference is made to the cousins being:
… more angry with [the appellant] than with the rest of [the] family.
The appellant continued that if he was to return to Afghanistan, he is sure that the cousins would have:
… done worse to me than to the rest of my family.
The appellant then turned to what was said to be an attack on the appellant’s father by the cousins, which had preceded the appellant’s father moving his family. At this point, it is convenient to note that it was very shortly after the three approaches for marriage, that the appellant left Afghanistan in June 2012, but his father and mother, by the time of the Authority’s reasons being given in 2017, had lived in Bibi Mahro for about two years.
It is against that background that one comes to what both parties agree is the critical part of the Authority’s reasons. Again, notwithstanding its length, it is convenient to set out it out in full (at [31]–[34]).
31There is no evidence before me 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 and for the reasons that follow, I am satisfied they could have done so, had they been so inclined. Shewaki village is located only 25-30 km outside Kabul so even though they relocated, I am satisfied that the applicant’s parents still live in reasonably close proximity to Shewaki village. There is also nothing before me to indicate that his mother’s origins were not known to other members of their extended family.
32.Furthermore, according to the applicant, his father has been working for the Afghan government, in the Kabul Central Bank (in Kabul) for approximately the last 20 years. At the SHEV interview the applicant was asked if people knew about his father’s work for the government and the applicant stated that some of his friends knew and the cousins ‘might know’. While I accept the applicant’s father has downplayed his role and that the applicant avoided discussing his father’s employment, I am not satisfied on the evidence that his father actively sought to conceal his employment from his family members. Given this and the long period which he has been employed by the government while still living in Shewaki where one of the cousins lives and would also have associations with other Shewaki villagers, I consider it implausible that the cousins would not be aware of his work, and his workplace in Kabul. I note the applicant also claims his father has declined opportunities for overseas work travel because he fears this will result in the cousins spreading rumours about him being a traitor or a foreign spy. I consider it implausible that the cousins would have knowledge of the father’s travel but not know he works for the government in Kabul. I am satisfied the cousins’ have knowledge of the applicant’s father’s employment and that this would also have enabled them to locate the applicant’s parents.
33.The evidence suggests that in the two years the applicant’s parents have lived in Bibi Mahro, Kabul, they have not been approached by anyone in Kabul looking for, or asking questions about the applicant. The evidence before me does not indicate that anyone sought to locate the applicant following the 2012 threat from unknown people and his departure from Afghanistan, nor that they sought to locate his parents or himself following the cousins’ attack on his father in 2015. Nor does it indicate the applicant’s parents have taken measures to conceal their links to Shewaki village, or have been otherwise taking measures to protect themselves from being found. I take into account these factors, as well as the fact that the applicant’s parents still live in reasonably close proximity to Shewaki and I consider they would be traceable through the father’s employment and / or the applicant’s mother’s ties to the Bibi Mahro area in Kabul. I am not satisfied that any problems the cousins had with the applicant is such that they have maintained any interest in him or in trying to ascertain his whereabouts.
34.I have considered 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 have not approached the parents in Kabul. The applicant claims he is at greater risk than his father. He claims they are more focussed on harming him as they view him as primarily responsible for the decision about the marriages and because he is young while his father is old and there is no much he can do. However I have not accepted the cousins would have blamed the applicant over his father in relation to the marriage rejections. Additionally, the applicant left the area in 2012 while his father, mother and siblings remained in the area for another three years and there was no change in the family’s rejection of the proposals. Since the rejections, the applicant’s father has also continued to work, made arrangements for his family’s relocation and on the evidence, still has control of their family land in Shewaki which they have leased out. Given all of these factors I do not accept his father’s older age has protected him from any ongoing problems with his cousins. I do not accept the cousins view the applicant as the person primarily responsible for the marriage rejection and I also do not accept the applicant’s claims that he would be at greater risk than his father. Rather, I find that if any member of the applicant’s family was to be harmed by the cousins, it would be his father. It follows that I do not accept that knowledge of the applicant’s absence is why they have not sought to approach his father in Kabul. I am not satisfied the cousins have sought to harm or even locate any member of the applicant’s family in the past two years.
(Emphasis added)
What seems to me to be evident from the above, is that it is plain that the appellant claimed to be a person to whom Australia owed protection obligations because the appellant feared persecution at the hands of the cousins arising from the rejection of the marriage proposals. In relation to this claim, the Authority made a number of relevant findings, including but not limited to those matters that I have emphasised above. These include:
·That it was not the appellant but his father who was the interlocutor representing the family and was the person who “ultimately repeatedly rejected the offers”: see the Authority’s reasons at [26].
·The Authority did “not accept the cousins have ever viewed the [appellant] as the person primarily responsible for the marriage rejection”: see the Authority’s reasons at [26].
·As noted in the above extracts, there had been no attempt to locate the appellant’s parents. The Authority was not satisfied that any problems with the cousins were such that the cousins had “maintained any interest in [the appellant] or in trying to ascertain his whereabouts” and expressly rejected the notion that the cousins would have blamed the appellant over his father in relation to the marriage rejections: see the Authority’s reasons at [33]–[34] as noted above.
It is against the background of these findings that I return to the two questions identified above. It is far from pellucid that even when one has regard to what counsel for the appellant conceded was the “high water” mark of the material referring to the asserted claim, that the claim was made that the appellant feared harm because of the possibility of the cousins again seeking to force him to marry one of the daughters upon his return to Afghanistan.
The March statutory declaration talks in terms of the cousins trying to arrange a forced marriage and, as a consequence of the rejection, the spreading of rumours and allegations against the appellant and a fear, by reason of the father’s cousins’ written threat (referred to at [18]–[19] of the statutory declaration), resulting in the appellant and his father deciding that it would be best for the appellant to leave Afghanistan. When the question of fear of return was addressed, at [31]–[35] of the statutory declaration, as noted in [32] extracted at [11] above, the fear was linked to the previous threats to have the appellant killed and to the rumours spread. The appellant’s fear was expressed that upon his return, the cousins would kill or “seriously physically harm” the appellant.
The second and third aspects of the appellant’s fear of return, which related to the Shewaki villagers and Islamic insurgent groups, were then expressed. Those aspects related to the first argument advanced by the appellant as it was thought that either the Shewaki villagers or Islamic insurgent groups may be motivated to harm the appellant physically (in part because of the rumours that had been spread by the cousins).
Applying a practical and common sense approach, I am not satisfied that the claim identified in the notice of appeal arose tolerably clearly from the material before the Authority, and I do not consider that the primary judge erred in failing to find to the contrary.
In these circumstances, it is strictly unnecessary to deal with the second stage of the process I identified at [3] above, although I will proceed to do so. In the event that the asserted claim did arise on the material before the Authority, it was necessarily dependent upon the premise that the cousins continued to have an interest in harming the appellant. In the Tribunal’s reasons at [33]–[34], express findings were made that the Authority was not satisfied that the cousins maintained any interest in the appellant.
The Minister submits:
The Authority considered whether the appellant’s father’s cousins had refrained from pursuing his parents in Kabul because they were aware of his absence, but concluded that that was not the reason why they had not been the subject of any adverse attention. It found that the appellant’s father’s cousins did not regard him as the person responsible for the rejection of the marriage proposal. It further found that, in the event that the appellant’s father’s cousins perpetrated any harm, they would do so against his father but not the appellant himself. Still further, the Authority found that his father’s cousins had not sought to harm, or even locate, any member of the appellant’s family since they moved to Kabul in 2015. The claim which the appellant asserts arose clearly on the material before the Authority could not possibly have survived these findings. These were the findings to which the primary judge was referring at AB 296 [37] …
At paragraph [37] of the primary judge’s reasons, his Honour said as follows:
The characterisation in the submissions advanced by Mr Zipser on behalf of the [appellant] of renewed efforts for the [appellant] 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 [appellant] 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.
I agree. For reasons I have explained, the primary judge did not err in failing to find jurisdictional error. In the circumstances, the appeal must be dismissed with costs, and I will make orders accordingly.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 4 December 2018
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