AGO18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1014
Federal Circuit and Family Court of Australia
(DIVISION 2)
AGO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1014
File number(s): SYG 160 of 2018 Judgment of: JUDGE LAING Date of judgment: 16 December 2022 Catchwords: MIGRATION – whether the IAA erred by requiring the applicant to establish a risk of persecution beyond others caught up in violence – whether the IAA failed to consider if the applicant was at a real risk of suffering significant harm as a result of being caught up in generalised violence – whether the IAA erred in finding that the authorities maintained effective but not absolute control in Kabul – whether the IAA was obliged to make inquiries – submissions regarding changed circumstances in Afghanistan - application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 5J(2), 36(2)(a), 36(2)(aa), 473DD(b) Cases cited: CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 95 ALJR 352
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 21 October 2022 Place: Sydney Solicitor for the Applicant The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent Mr J. Hutton (AGS) appeared in person ORDERS
SYG 160 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AGO18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
16 December 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
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
JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Afghanistan. He arrived in Australia as an unauthorised maritime arrival on 18 April 2013.
On 6 June 2016, the applicant applied for a protection visa.
The Delegate refused the application on 5 June 2017. The Delegate’s decision was referred to the IAA on 8 June 2017.
On 15 December 2017, the IAA affirmed the Delegate’s decision.
the IAA’S DECISION
The IAA observed that a submission containing new information had been received on 30 June 2017. In this regard:
(a)The IAA observed that part of the submission (regarding Shi’a Hazaras) appeared to have been provided in error. The IAA did not consider that this material was relevant to the review before it (at [6]).
(b)The submission raised a new claim that the applicant’s brother did not attend to his real estate business on a regular basis due to fear of the Taliban. The IAA was not satisfied that either limb of s 473DD(b) of the Migration Act 1958 (Cth) (Act) was met in relation to this new information, nor that exceptional circumstances justified its consideration (at [7]-[8]).
(c)The submission annexed six media reports that pre-dated the Delegate’s decision. The IAA observed that no explanation was provided for why this material was not provided to the Delegate, that it contained general country information of limited relevance and that other country information was available to the IAA. The IAA was not satisfied that the requirements of s 473DD of the Act were met in relation to this information (at [10]).
(d)The submission annexed one media report which post-dated the Delegate’s decision. The IAA accepted that this could not have been provided to the Delegate. However, the report appeared to be of limited relevance to the applicant’s claims and the IAA was not satisfied that exceptional circumstances justified its consideration (at [11]).
The IAA considered that exceptional circumstances justified consideration of an updated Department of Foreign Affairs and Trade (DFAT) report which post–dated the Delegate’s decision and provided updated information of potential relevance to the applicant’s claims (at [12]).
The IAA accepted that the applicant was a Sunni Tajik from Kabul, Afghanistan (at [16]). It found that he was employed by a company (Company), that had been claimed to provide logistics support including food and water to the United States military and the International Security Assistance Force (at [19]).
However, the IAA did not accept the applicant’s claims to have been threatened by the Taliban on account of his employment at the Company or refusal to poison food (at [20]-[35]). In this regard, the IAA raised a number of credibility concerns including that:
(a)the applicant had given inconsistent evidence regarding the timeframe of his employment with the Company (at [17]-[19]);
(b)whilst the applicant had claimed not to speak or understand Pashto beyond a few words, he had provided a detailed account of a call he claimed to have received in that language telling him to poison food (at [21]-[23], [26]);
(c)the applicant did not explain how he was able to understand the contents of a letter in Pashto, which he claimed not to have shown to anyone (at [24]-[28]);
(d)it was implausible that the applicant would not have brought the threats claimed to the attention of the Company or his family (at [29]-[30]);
(e)it was implausible that no one attempted to approach the applicant during the period he claimed not to be answering telephone calls, given his evidence that the Taliban knew him and where he lived (at [30]);
(f)no one was claimed to have approached the applicant’s family after June 2012, other than one incident in 2014 of someone knocking on the door and leaving (at [30]).
The IAA concluded that the applicant was not of adverse interest to or at risk from the Taliban on account of his previous employment. The IAA observed that the applicant had not claimed to have employment opportunities in the future with the Company or any similar organisation (at [31]-[34]). The IAA was therefore satisfied that the applicant did not face a real chance of harm in the reasonably foreseeable future from the Taliban or any other entity due to his past employment (at [35]).
Whilst the IAA acknowledged that there was some chance of the applicant being caught up in violence, it was not satisfied that he would be personally targeted (at [46]). Having regard to available country information and the applicant’s personal circumstances, the IAA was satisfied that the applicant did not face a real chance of harm as a Tajik, Sunni, or Tajik Sunni, within Kabul (at [48]).
The IAA considered that the risk of the applicant being harmed in generalised violence was remote. Whilst there was some chance of the applicant being identified as having returned from Australia or the west, perceived as wealthy and/or kidnapped for ransom, the IAA also found this to be remote considering that the applicant would be returning to live with his family in Kabul (at [49]-[51]).
The IAA concluded that the applicant did not face a real chance of serious or significant harm because of any adverse profile, his previous employment, ethnicity, religion, having spent time and sought asylum in Australia, any perception of wealth, the general security situation and/or for any other reason. Having found that the applicant could not meet the criteria for a protection visa, the IAA affirmed the Delegate’s decision (at [52]-[58]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings by application filed on 19 January 2018, relying upon the following grounds:
The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error because:
1. The IAA’s decision involved error of law, being an error involving an incorrect interpretation or application of the applicable law.
Particulars
(i)In its reasons for decision, the IAA:
a. accepted that there was a chance of the applicant being caught up in violence, including extremist attacks in Kabul, occasioned by the armed conflict in Afghanistan (at [45]-[46])
b. was not satisfied that the applicant would be targeted personally or as a result of holding any particular political profile (at [46]).
(ii)The IAA erred by:
a. In effect requiring the applicant to establish a risk of persecution over and above those of other individuals caught up in the violence; and/or
b. Adopting an unduly narrow view when it was required to consider a “complex of factors”: Minister for Immigration v Haji Ibrahim [2000] HCA 55 at [70], [73] per McHugh J.
2. In its complementary protection assessment, the IAA failed to consider a relevant finding it had made about the applicant.
Particulars
(i)In its reasons for decision, the IAA:
(a) accepted that there was a chance that the applicant would be caught up in violence, including extremist attacks in Kabul, by reason of the armed conflict in Afghanistan, but was not satisfied that he would be targeted personally or on account of any political profile (at [46]).
(b) in its complementary protection assessment, the IAA concluded that there was no real risk significant harm as a result of the security situation and/or generalised violence in Kabul (at [57])
(ii)Even if the reasons given by the IAA (no personal targeting, political profile) were sufficient in the context of its refugee assessment, the IAA erred by failing to consider whether its satisfaction of a chance that the applicant would be caught up in violence, including extremist attacks in Kabul, also satisfied it that there was a real risk of significant harm for this reason.
3. The IAA’s decision involved an error of law, being an error involving an incorrect interpretation or application of the applicable law.
Particulars
(i)In its reasons for decision, the IAA:
a. considered country information to the effect that Afghan authorities were unable to protect civilians from violence and only to “some extent” in Kabul (at [49]);
b. was not satisfied that the applicant faced a real chance of harm by reason of generalised violence in Kabul because, among other reasons, it was satisfied that the Afghan government or security forces would lose effective control of that city in the reasonable foreseeable future (at [49]);
c. found that Afghan authorities maintained effective but not absolute control in Kabul (at [51]);
d. took into account this factor to conclude that the chance of harm to the applicant by the reason of generalised violence was remote (at [49]).
(ii)The IAA erred because, in circumstances of generalised violence, effective control over particular territory without more was insufficient to establish that Afghanistan was willing and able to provide effective protection to the applicant.
Ground 1
Ground 1 contended that the IAA erred by requiring the applicant to establish a risk of persecution beyond others caught up in violence, and/or by adopting an “unduly narrow view”. This was said to have occurred by reference to the IAA’s acceptance at [45]-[46] of there being a chance of the applicant being caught up in violence, but not accepting that the applicant would be targeted personally or on account of his profile (at [46]).
The IAA’s reasons at [45]-[46] were as follows (footnotes omitted):
45.DFAT also noted that Afghanistan’s decline in security during 2015 showed no evidence of reversal during the first half of 2016, and civilians continued to suffer unprecedented harm during this period. It referred to reports that documented 1,601 civilian deaths and 3,565 injured civilians in the six month period between January and June 2016. This represents an increase of four per cent in the total number of casualties compared to the first six months of 2015, and is the highest half-year total since 2009, but these figures are conservative and almost certainly underestimate the true numbers. The majority of these civilian casualties were caused by AGE, particularly the Taliban, which specifically targeted civilian groups such as human rights defenders, journalists, lawyers and judges, aid workers and civil servants, and used indiscriminate tactics, including carrying out devastating attacks in civilian areas.13 Other reports in the material, including reports provided by the applicant, corroborate a spike in high-profile attacks in Kabul and resultant civilian deaths but also note that such attacks are mainly aimed at government or international forces.14
46.I have not accepted that the applicant has any profile arising from his previous employment. I am therefore satisfied that he does not have a profile as someone who is connected to the government or international community, nor has he any proximity to persons who do. The applicant is a Sunni and has not claimed that he has ever attended any Shi'a places of worship or that he would do so in the future. While I accept that there remains a chance of the applicant being caught up in violence, including extremist attacks in Kabul, I am not satisfied that he would be targeted personally, or as a result of holding any particular political profile.
I accept Mr Hutton’s submissions for the Minister to the effect that there are essentially two reasons that this ground is unable to succeed.
Firstly, the IAA did need to be satisfied of something that went beyond the applicant being caught up in generalised violence in order to find that the applicant was capable of meeting s 36(2)(a) of the Act. That provision required that the applicant meet the definition of a ‘refugee’, which in turn required a ‘well-founded fear of persecution’: s 5H. Section 5J of the Act limited this concept by reference to ‘reasons of race, religion, nationality, membership of a particular social group or political opinion’. The IAA appears not to have accepted that the applicant would be harmed for any convention reason advanced by the applicant. This would have been sufficient to determine the applicant’s claims insofar as they relied upon the concept of persecution: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at [141].
Secondly, at [46] the IAA accepted that there was a ‘chance’ of the applicant being caught up in violence. It did not qualify the level of the chance (i.e. whether it was a real chance, or otherwise). The IAA went on to find, by reference to country information, at [49] that (footnote omitted, emphasis added):
49.I accept that civilian casualties in Kabul have risen in recent years. Civilians have been killed in places of worship, bazaars and other ordinary places they need to access. The applicant has provided information about civilian casualties in Kabul, including attacks by Islamic State. According to the Dutch Ministry of Foreign Affairs, the Afghan authorities are, in general, unable to provide civilians with protection against violence, with the only possible exception being the city of Kabul, but even then only to some extent.15 I have had regard to the information before me, the submissions and the information therein; however, while insurgent attacks have occurred in and around Kabul, I am not satisfied on the evidence that the Afghan government or security forces will lose effective control of the city in the reasonably foreseeable future. As noted above, the insurgents' primary targets and targeted locations have been persons and locations associated with the government and the international community. While Islamic State has carried out attacks along sectarian lines in Kabul, its sectarian targets have not been Sunnis or Tajiks and these attacks have been sporadic. I have found above that the applicant does not currently hold any profile connected to the government or international community and does not have any proximity to persons who do. Taking into account these factors and the size and diversity of the city, I find the chance the applicant would be harmed as a bystander, inadvertently getting caught up in attacks, or otherwise through generalised violence is remote. I am not satisfied that he faces a real chance of suffering harm through generalised violence in Kabul.
The IAA found that the risk of the applicant being harmed through generalised violence was ‘remote’ and did not amount to a ‘real chance’: see Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389, 398, 407, 429 and CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [22].
I accept Mr Hutton’s submission that, in these circumstances, the IAA’s reasoning did not depend upon the IAA (a) requiring the applicant to establish a risk above others caught up in violence, or (b) any narrow view of the applicant’s claims. The IAA, rather, found more generally that there was not a real chance of the applicant suffering harm from violence in Kabul.
It follows that ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the IAA failed to consider whether there was a real risk of the applicant suffering significant harm as a result of being caught up in violence. This was in circumstances where the IAA at [46] accepted that there was a ‘chance’ of this happening, but found that the applicant would not be targeted personally or on account of any political profile. Ground 2 contended that the IAA’s finding at [46] was overlooked by the IAA in concluding at [57] that the applicant would not face a real risk of significant harm for reasons including ‘the security situation and/or generalised violence in Kabul’.
I do not accept that the IAA overlooked its reasoning at [46]-[49] when making its finding at [57]. To the contrary, at [57] the IAA expressly relied upon its earlier reasoning. The IAA observed that it had “found above that the applicant would not face a real chance of harm” on account of generalised violence and/or the security situation. For the reasons I have given under ground 1, I accept that this was an accurate characterisation of the IAA’s reasoning at [46]-[49]. Whilst the IAA acknowledged a ‘chance’ of harm at [46], it went on to find at [49] that it was not satisfied there was a ‘chance’ amounting to a ‘real chance’ of the applicant suffering harm through generalised violence.
As the IAA observed at [57], the ‘real chance’ test and the ‘real risk’ test impose the same threshold: MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246]. The IAA was entitled to rely upon its findings regarding the former in assessing the latter: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 95 ALJR 352 at [27]. That is what it did at [57], in concluding that there was not a real risk of the applicant suffering significant harm as a result of being caught up in generalised violence.
Ground 2 is therefore unable to succeed.
Ground 3
Ground 3 suggested that the IAA erred in finding at [51] that the Afghan authorities maintained effective but not absolute control in Kabul, when effective control was insufficient to establish that Afghanistan was willing and able to provide the applicant with ‘effective protection’.
The ground appears to contemplate the IAA’s application of s 5J(2) of the Act, which provided that a ‘person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country’.
I accept Mr Hutton’s submission that the ground misunderstands the IAA’s reasoning at [49] and [51]. The IAA did not rely upon any finding that ‘effective protection measures’ were available to the applicant. Instead, the IAA found that the applicant did not face a real chance of harm in Kabul, having regard to the level of control maintained by the authorities, other country information regarding the security situation and the applicant’s personal circumstances.
As ground 3 relies upon a misconstruction of the IAA’s reasoning, it is unable to succeed.
Other issues raised
Paragraph [6] of the IAA’s decision
Mr Hutton, acting quite properly, and in circumstances where the applicant was no longer represented by the time of the hearing before this Court, drew attention to a further potential issue regarding [6] of the IAA’s decision. That paragraph concerned information provided on behalf of the applicant to the IAA after the Delegate’s decision, and stated as follows:
6.Part of the submission refers to a claim in relation to harm faced by Shi’a Hazaras and asserts that there is no available evidence that Tajik are targeted due to their ethnicity. The applicant claims to be a Sunni Tajik and has never claimed to have been a Hazara or accused of being Hazara. He has not claimed to have ever been, or to have converted to, Shi’a. I consider that this submission has been made in error and is not relevant to the review before me.
In Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 (DUA16), the High Court found that in the ‘extreme’ circumstances where the IAA was aware that an applicant (CHK16) had intended to provide it with submissions, but their agent had inadvertently provided submissions regarding another person, it was legally unreasonable for the IAA not to make further inquiry (at [28]-[32]).
However, I accept Mr Hutton’s submissions as to why no such error occurred in the present case. In DUA16, the erroneous submissions made on CHK16’s behalf were unrelated to the applicant in question (at [28]). In the present case, the submissions in question did not relate entirely to another applicant. They correctly identified the applicant in question, and largely addressed matters of apparent relevance to his case. The part containing the apparently mistaken references to Hazara Shi’a formed a relatively limited part of the submissions made on behalf of the applicant. The present case is therefore more akin to that considered in DUA16 at [34] (regarding applicant DUA16). In these circumstances, I accept that it was not legally unreasonable for the IAA not to have made further inquiries but instead to have dealt with this material in the manner that it did.
The current situation in Afghanistan
As stated above, the applicant was unrepresented by the time of the hearing before this Court. Towards the end of the hearing, he raised that the situation in Afghanistan has changed since the date of the IAA’s decision. In response, Mr Hutton communicated the Minister’s position regarding the situation in Afghanistan as follows:
[I]t is open for applicants to apply for Ministerial Intervention in circumstances where they are from Afghanistan and the situation has changed. There is a process to apply for Ministerial Intervention if the applicant has not already done that… the Minister’s powers to intervene are personal and non-compellable and not bound by any timeframes.
Reference was also made to “the former Minister’s earlier statement that people on bridging visas or Afghan visa-holders in Australia will not be returned to Afghanistan whilst the security situation there remains dire”. Mr Hutton offered to discuss the position with the applicant further after the hearing.
Regardless of the result of that discussion, and whether or not the applicant applies for Ministerial Intervention, the Court’s role in judicial review proceedings is limited. As I explained during the hearing, this Court has no power to reassess whether the applicant’s protection visa application ought to be granted based upon the current situation in Afghanistan. What this Court can do is assess whether or not any material legal error is apparent in either the decision or the procedure of the IAA. I have not identified any such error, either by reference to the matters raised by the parties or upon my own review of the materials.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
39 I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 16 December 2022
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