AGU16 v Minister for Immigration

[2016] FCCA 1647

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGU16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1647

Catchwords:
MIGRATION – whether the Tribunal misconstrued the requirements of a ministerial direction – whether the Tribunal failed to take relevant considerations into account – real chance test – well-founded fear test – whether the Tribunal failed to apply the correct legal test – whether the Tribunal misconstrued or misapplied case law– whether the Tribunal failed to comply with s.425 of the Migration Act 1954 – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 424A, 425, 476, 499.

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.

Applicant: AGU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 272 of 2016

Judgment of: Judge Street

Hearing date: 4 July 2016

Date of Last Submission: 4 July 2016

Delivered at: Sydney

Delivered on: 4 July 2016

REPRESENTATION

Counsel for the Applicant: Mr S Tully

Solicitors for the Applicant: Legal Aid Commission of NSW

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The name of the Applicant that was initially described as AGU15 at the time of filing of the application is AGU16 and the Court dispenses with the need to file any corrective document in this regard.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 272 of 2016

AGU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision that the Tribunal made on 7 January 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The applicant was found to be a citizen of Afghanistan, and his claims were assessed against that country.  The applicant arrived at Christmas Island on 11 July 2012.  The applicant claimed to fear harm by reason of his race, being a Hazari, and his religion, being a Shia Muslim. 

2. The applicant feared persecution by the Afghan Government, the Taliban, the Islamic State or Daesh, or other insurgent groups and also by reason, in addition to his race and religious, his membership of a particular social group of Western returnees or failed asylum seekers deported from a Western country.  The delegate found that there was not a real chance of the applicant being persecuted for a refugee Convention reason and was not satisfied that the applicant’s fear of harm was well founded. 

3. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Afghanistan, there is a real risk that the applicant would be subject to significant harm. On 19 December 2013 that the delegate declined to grant the applicant a protection visa.  The applicant applied for a review on 2 January 2014. 

4. By letter dated 10 August 2015, the applicant was invited to attend a hearing to give evidence and present arguments on 4 September 2015.  The applicant attended on that date to give evidence and present arguments and was assisted by his representative, who was present by telephone at that hearing.  Prior to that hearing, the applicant’s representative provided submissions dated 1 September 2015. 

5. Following the hearing, on 18 September 2015, the Tribunal sent to the applicant’s representative the DFAT country report and the DFAT thematic report both dated 18 September 2015. The letter identified, pursuant to direction 56, that the Tribunal was required to take into account such assessments.  The letter noted that the Tribunal invited the applicant to make any comments in relation to those reports by close of business on 2 October 2015.  Upon the material in the Court book, there was no further response to that invitation by the Tribunal prior to the Tribunal’s decision on 7 January 2016. 

6. The Tribunal, in its reasons, summarised the relevant law in an attachment A.  That attachment A also made reference to the ministerial direction number 56.  The Tribunal’s reasons identify the applicant’s claims and evidence as well as identifying that the applicant came from a particular location in a particular district of a particular province.  Before the delegate, reference was made to that particular location as well as to Kabul.  In the course of the Tribunal’s reasons, the Tribunal referred to the applicant stating that he did not consider Kabul to be an appropriate place for him to live. 

7. The Tribunal expressly referred, in para.36, to the recent country information that it had forwarded to the applicant for comment in respect of the reports dated 18 September 2015.  The Tribunal expressly identified that it was required to take into account such assessments and noted that no comment had been received.  The Tribunal found that there was only a remote chance that the applicant would be persecuted because as a returnee from a Western country or specifically because he would be returning from a Western country after having been deported as a failed asylum seeker if he returns to Afghanistan now or in the reasonably foreseeable future. 

8. The Tribunal did not accept that if the applicant returned to Afghanistan now or in the reasonably foreseeable future, there is a real chance that he would be persecuted by the Afghan Government, the Taliban, Islamic State or Daesh, other insurgent groups or Pashtun or Tajik ethnics groups for reason of his race, his religion, his membership of a particular social group of Western returnees or failed asylum seekers deported from a Western country like Australia, or any political opinion imputed to him as a result of his race, religion or membership of these particular social groups. It was in these circumstances that the Tribunal found that the applicant did not have a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future. 

9. The Tribunal also found that it did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan there is a real risk he will suffer significant harm as defined by s.36(2A) of the Migration Act 1958. It was in those circumstances the Tribunal found that the applicant did not meet the criteria under s.36(2)(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

10. The grounds of the amended application are as follows:

    The Migration and Refugee Division of the Administrative Appeals Tribunal (the Tribunal) failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (the Act) and/or its decision the subject of this application is affected by jurisdictional error because:

    1. The Tribunal misconstrued the requirements of Ministerial Direction No 56 – Consideration of Protection Visa Applications (the Direction). ~'

    Particulars

    (a) Clause 3 of the Direction required a decision-maker to take into account country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) where available and relevant to its decision.

    (b) The Tribunal considered that it had to take into account DFAT Thematic Report - Conditions in Kabul (18 September 2015) (the Thematic Report).

    (c) The Thematic Report was not a country information assessment which the Tribunal was required to take into account.

    (d) Alternatively, if the Thematic Report was a country information assessment, then the Tribunal failed to take into account a mandatory consideration in making its decision, being the Thematic Report available to and considered relevant by the Tribunal.

    2. The Tribunal failed to have regard to a relevant consideration.

    Particulars

    (a) Clause 3 of the Direction required the Tribunal to take into account a country information assessment prepared by DFAT, being DFAT Country Information Report-Afghanistan (18 September 2015) (the DFAT County Report).

    (b) At [24] and [35] of its decision, the Tribunal indicated that DFAT had identified no evidence of any official government policy of discrimination against Hazaras, relying on two DFAT reports from 2014 with a note to “see now” the DFAT Country Report.

    (c) The DFAT Country Report at [3.13] referred to earlier practices of official discrimination against Hazaras.

    3. The Tribunal failed to apply the correct legal test when determining the location of the applicant's “home region” or “home area”. ·

    Particulars

    (a) At [17], [25], [34], [49] and [51] of its decision, the Tribunal asked itself where the applicant “came from” and considered the present whereabouts of his family.

    (b) The Tribunal was required but failed to apply the test as stated in SZQEN v MIAC [2012] FCA 387 at [38]. ·

    4. Having regard to its findings and reasons, the Tribunal misapplied or misconstrued Appellant 839512002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (Appellant 839512002).

    Particulars

    (a) The Tribunal erred because the principles from Appellant 839512002 did not apply given the applicant's claims and the circumstances as found by the Tribunal.

    (b) Alternatively, the Tribunal failed to consider how the applicant would modify his behaviour or the reasons for it.

    5. The Tribunal failed to comply with s425 of the Migration Act 1958 (Cth).

    Particulars

    (a) The Tribunal considered the following issues to be dispositive to the review:

    (i) The motivation of insurgent groups to conduct kidnappings (at [40], [42] and [46] of its decision); and

    (ii) The risk of harm arising from Islamic State, Daesh or affiliated groups (at [36]).

    (b) The applicant had not been invited to give evidence and present arguments in relation to either of these issues.

11. The Court had tendered before it the direction number 56 and, relevantly, para.3 provides as follows

    Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

12. Mr Tully, of counsel, sought to argue that because the thematic report was one which referred to the location of Kabul, it was not country information that fell within the mandatory assessment under direction 56. On the plain, ordinary meaning, direction 56 does not require the taking into account only of country information that refers to the whole country. The confinement of the thematic report to Kabul did not mean that it was not an assessment of country information falling within the meaning of the mandatory direction under s.499 of the Migration Act 1958 (Cth).

13. It is apparent from the Tribunal’s letter and the Tribunal’s reasons that it treated the thematic report as information to which it had to have regard in accordance with that direction.  The Tribunal was correct in doing so. The thematic report was expressed to be a country information assessment prepared for protection status determination purposes.

14. Mr Tully also submitted that notwithstanding the reference to the Tribunal expressly taking into account the thematic report, dated 18 September 2015, in its reasons, the Court should find that it had not done so. The submission was developed by reference to the differences between the two reports and the absence of any footnoted reference to the equivalent paragraphs, or new paragraphs in the thematic report, dated 18 September 2015.

15. It is not necessary for the Tribunal to pepper its reasons with footnotes. It is apparent from the content of the Tribunal’s reasons that it took into account the 18 September 2015 thematic report. The absence of reference to particular paragraphs does not in the present case support drawing an inference that the Tribunal failed to comply with its mandatory obligation under s.499. Ground 1 fails to make out any jurisdictional error.

16. In relation to ground 2, reference was made to para.3.13 of the country report, dated 18 September 2015, which relevantly said:  

    While conditions for Hazaras have improved greatly since 2001, they still face some societal discrimination, partly as a result of earlier practices of official discrimination

17. Reference was made to the Tribunal’s reasons in para.24 where the Tribunal said it had no evidence of any official policy of discrimination pursued by the government on the basis of race.  Reference was also made to para.35 in which the Tribunal said that it had no evidence of any official policy of discrimination pursued by the government on the basis of race.

18. It is apparent from the Tribunal’s reasons that it had extensive regard to the country report, dated 18 September 2015.  I do not regard the reasoning in paras.24 or 25 as supporting the drawing of an inference the Tribunal failed to have regard to the whole of the country information report, dated 18 September 2015.

19. Earlier practices of official discrimination are different in content and meaning to the reference to no evidence of any official policy of discrimination pursued by the government on the basis of race.  The Tribunal’s reasons were clearly referring to the current position in relation to the official policy of the government.

20. The absence of reference in the footnotes or in the reasoning to the first sentence of para.3.13 does not support the drawing of any inference that the Tribunal found to have regard to the whole of the report in respect of the DFAT country report.  Ground 2 fails to make out any jurisdictional error.

21. In relation to ground 3, the Tribunal made a finding in relation to the applicant’s home in that he came from a particular location. That finding was open on the evidence before the Tribunal.  There was no failure to apply the correct test by the Tribunal in determining that the particular location was the applicant’s home area.  To the extent reference was made to Kabul, it is apparent from the applicant’s evidence that he did not consider that a proper place for him to live. Further, for the applicant to return to Afghanistan, it was apparent on the material and reasons of the Tribunal that he would return via Kabul.

22. There was no incorrect test applied by the Tribunal in making the finding of fact as to the applicant’s home area.  It is apparent that the Tribunal took into account where the applicant had come from in respect of his home area in making the adverse findings that the applicant did not have a well-founded fear of being persecuted, and that there was not a real risk that the applicant would suffer significant harm.  Ground 3 fails to make out any jurisdictional error.

23. In relation to ground 4, the Tribunal, in the course of its reasons, referred to the DFAT report, para.5.21, which relevantly provides:

    DFAT is aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country. While this Country Information Report does not make a judgement on the veracity of individual cases, in general DFAT assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers. As noted above, people who are identifiable as being associated with foreign (particularly western) countries may be targeted by insurgent groups such as the Taliban. Returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with support for the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses that returnees from western countries who maintain a low profile such as by taking steps to conceal their association with the country from which they have returned do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.

24. The Tribunal, consistent with its obligation under s.499, referred to the substance of the last sentence in para.5.21 and then said:

    I do not accept that the need to take precautions in itself amounts to persecution in the sense explained by the High Court in Applicant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473.

25. The Tribunal, in its reasons, continued after that reference to evaluate the applicant’s particular circumstances and, in particular, the chance of the applicant being identified as coming from a western country leading to the finding that there was only a remote chance that the applicant would be persecuted because he will be a returnee from a western country.   The critical conclusion by the Tribunal, having taken into account the applicant’s circumstances cumulatively, was that it did not accept that the applicant had a well-founded fear of persecution for one or more of the five Convention reasons. 

26. Mr Tully on behalf of the applicant, submitted that the Tribunal had made an inappropriate assumption and failed to address the correct test in relation to whether the applicant had a well-founded fear in relation to the claim concerning the applicant being a returnee from a western country.  The summarising by the Tribunal of the information from the country report does not, in itself, identify the making of any assumption.

27. The reference to not accepting that the need to take such precautions by the Tribunal was a reference to maintaining a low profile.  The reference to the low profile in that regard was not a matter referable to the applicant’s belief or lifestyle, or other characteristic, but was in the context of the report by DFAT in relation to returnees from western countries.

28. The taking of a precaution to maintain a low profile is not an assumption of the kind identified in  Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. by the current Tribunal. It is apparent that the current Tribunal was not deflected from its proper task. To the extent that the Tribunal made reference to the need to take precautions in itself not amounting to persecution, in the sense explained by the High Court of Australia, that was a finding open to the Tribunal. I do not accept that there was any assumption by the Tribunal of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. I do not accept that the reference to the need to take precautions to maintain a low profile coming from a western country in the context of the quoted country information involved an assumption of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

29. Insofar as the applicant contended that the Tribunal had failed to make findings as to whether the applicant would maintain a low profile being a returnee from a western country, the Tribunal’s reasons are not to be read with a keen eye for error.  It is apparent that the Tribunal was focused on the applicant’s individual circumstances and, in particular, the applicant’s evidence that he had raised that there would be television reporters that would cause him not to have a low profile.  The adverse finding by the Tribunal as to no television reporters was open on the material before the Tribunal. There is no error of the kind identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. Ground 4 fails to make out any jurisdictional error.

1. In relation to ground 5, the claim relating to Islamic State, or Daesh, or affiliated groups was raised, it appears, for the first time in the submissions of the applicant dated 1 September 2015 and was taken into account and was the subject of adverse findings that were open to the Tribunal.  There was no finding by the delegate in relation to the Islamic State, Daesh, or affiliated groups that relied on any obligation of the kind identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.

2. Insofar as the reference has been made to insurgent groups conducting kidnappings, it is apparent from the transcript that the Tribunal raised with the delegate the risks on the roads in respect of which the applicant referred to abductions.  As the Tribunal’s reasons should not be read with a keen eye for error, abductions are, in substance, the same as kidnappings.  It is apparent on the face of the transcript that the Tribunal raised the issue of the applicant’s safety on the roads in the course of the hearing and, in that regard, raised a live issue relating to the risk of the applicant being abducted or kidnapped.

3. Mr Tully, counsel for the applicant, referred to the country information report which was referred to by the Tribunal in relation to the motivations for kidnappings being unclear, although ethnicity and religion might sometimes be a contributing factor.  Insurgent groups typically targeted people associated with government and international communities, or people who appeared wealthier than other Afghans.  The Tribunal made other reference to the motivation for kidnappings from the DFAT report.  It is apparent from the Court book that the applicant was sent the DFAT report and given an opportunity to make comment in relation to the DFAT report and chose not to do so. 

4. The reference to the motivation of the kidnappings was part of the reasoning of the Tribunal and was not a matter which enlivened any obligation to raise afresh with the applicant the material in the DFAT report referring to the motivation for kidnappings. 

5. I am satisfied that the applicant had a genuine hearing and that the Tribunal complied with its statutory obligations under s.425 of the Migration Act 1958. The content of the DFAT report fell within s.424A(3)(a) of the Migration Act 1958 and was not material in the present case that required the applicant to be invited to a further hearing to give evidence and present arguments. The applicant was in fact given an opportunity to respond to and put further submissions or evidence in respect of the DFAT report. Ground 5 fails to make out any jurisdictional error.

6. The amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 July 2016