AHI16 v Minister for Immigration
[2016] FCCA 3140
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHI16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3140 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims about the safety of relocating to Mazar-e-Sharif by flying from Kabul – Tribunal failed to consider all of the circumstances surrounding the relocation – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 500(6H) |
| Cases cited: AZAEH v Minister for Immigration & Border Protection [2015] FCA 414 |
| Applicant: | AHI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 289 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 30 November 2016 |
| Date of Last Submission: | 30 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Solicitors for the Respondents: | Mr A Markus, Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 7 January 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant's application for review of the decision of a delegate of the first respondent dated 13 September 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 289 of 2016
| AHI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan who arrived in Australia by boat on 16 July 2012. On 4 November 2012 he applied for a protection visa on the basis that he is a Hazara Shia and his father was a member of the Hezbi Wahadat armed group who had been killed by the Taliban.
On 13 September 2013 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to what was then the Refugee Review Tribunal (RRT) for review of that decision.
Tribunal’s decision
On 7 January 2016 the Administrative Appeals Tribunal (which had by then assumed the RRT’s functions) affirmed the delegate’s decision.
The Tribunal accepted the applicant’s claims to be a Hazara Shia and that his father was killed by members of the Taliban for having fought against them. It accepted that the applicant had a well-founded fear of persecution for those reasons in his home area of Parwan. However, the Tribunal found that the applicant did not have such a fear in Mazar-e-Sharif, a city in the north of Afghanistan, and that it would be reasonable and practicable for the applicant to relocate there. Applying what is commonly known as the internal relocation principle, the Tribunal concluded that the applicant was not a refugee and so did not satisfy the criterion in sub-s.36(2)(a) of the Migration Act 1958 (Cth). It applied similar reasoning to conclude that the criterion in sub-s.36(2)(aa) was not satisfied.
The applicant argues that the Tribunal’s application of the relocation principle was flawed because it did not consider the impact of the likelihood of attacks by the Taliban on Kabul airport on his ability to travel to Mazar-e-Sharif. The same argument is put another way, namely, that the Tribunal failed to consider significant evidence relied on by the applicant.
The following passage in the Tribunal’s reasons is central to this argument:
[42]The Tribunal accepts that there was a sectarian attack in Mazar-e-Sharif in December 2011 and that incidents have occurred in other provinces, as well as on the roads in certain areas, particularly the roads between Kandahar and Kabul and Ghazni and Kabul as referred to by the applicant’s representative in her submissions and the opinion of Professor Maley (‘On the Return of Hazaras to Afghanistan’ dated 16 February 2015), which was provided to the Tribunal by the applicant’s representative. As it was put to the applicant at the hearing, he would be able to fly to Mazar-e-Sharif from Kabul and avoid travelling by road. In any event, there are only very occasional incidents on the road to and from Mazar-e-Sharif. As already noted, DFAT has assessed that the Government of Afghanistan maintains effective control in Mazar-e-Sharif, that there is a low risk of criminal or insurgent violence for Hazaras in Afghanistan and that Shia-Sunni sectarian violence is infrequent in Afghanistan as a whole.
(Emphasis added)
The Minister argued that the Tribunal’s reasons had to be understood in the context of the way in which the applicant presented his argument. This context, it was argued, included the following: first, the applicant did not raise the safety of the airport in connection with the issue of relocation but rather, in support of an assertion that the applicant feared serious harm in Kabul because of the level of violence particular to Hazara areas of West Kabul and in support of a submission that it would not be safe for the applicant to return to Afghanistan through Kabul airport, because he would need to travel on dangerous roads.
Secondly, after the Tribunal suggested to the applicant at the hearing on 23 June 2015 that he would be able to fly to Mazar-e-Sharif from Kabul, the applicant accepted that proposition in subsequent written submissions.
The Minister further argued that the Tribunal’s comment at [42] about flying was only one aspect of its consideration of the reasonableness of relocation and that the proper approach to the issues requires all of its reasoning to be taken into account. Part of that reasoning was the reference to country information to the effect that there were only very occasional incidents on the road to and from Mazar-e-Sharif.
In order to understand and determine these arguments, it is first necessary to outline what is meant by the internal relocation principle and how it must be applied.
Consideration
The internal relocation principle
I explained the juridical basis for the principle in BUY15 v Minister for Immigration & Border Protection [2016] FCCA 1736 at [24]-[35] and need not repeat anything said there. The Minister agreed, as do I, that the following summary of the relevant principles in the applicant’s written submissions is accurate:
[10] The 'internal relocation principle' operates when there is a place within a person's country of nationality to which the person could reasonably be expected to relocate: SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at [19]; Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 at [21].
[11] In assessing whether it is reasonable for a person to relocate to another area, the Tribunal must not simply look at whether the person has a well-founded fear of persecution in that place. The practicalities of relocation must also be considered: SZSSY v Minister for Immigration & Border Protection [2014] FCA 1144 at [26] - [29]; NAIZ v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22], [73];
[12] The scope of inquiry that the Tribunal must make into the practicality of relocation will be determined by the particular objections raised to relocation by the applicant: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [124]; Randhawa v Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442-443.
In MZACX v Minister for Immigration & Border Protection [2016] FCA 1212 Kenny J explained, at [34] citing AZAEH v Minister for Immigration & Border Protection [2015] FCA 414 at [21]; and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [60]-[61], [68]; [2004] FCAFC 263 (“NABE”), that the Tribunal’s task is to assess the reasonableness of relocation as regards the applicant by reference to the issues raised by him and on the other material before the Tribunal.
The reference to “other material before the Tribunal” means that even if the question of safety at Kabul airport was raised by the applicant in a context other than relocation, it may be necessary for the Tribunal to consider it. In NABE the Full Court said at [58]:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). …
In a different context, the Full Court has held that, regardless of the other material, the way in which an applicant framed his or her case was important, or at least relevant, to determining whether a decision-maker was required to consider a particular matter: Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48; [2012] FCAFC 24 at [24] – [26], [36] (Flick and Jagot JJ). The decision of the High Court in Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203; [2015] HCA 15 (“Uelese”), particularly at [61] – [64], has thrown some doubt on that statement.
In Uelese the appellant’s visa had been cancelled by a delegate of the Minister. The delegate made that decision on the basis that the applicant was the father of three children. The applicant applied to the Administrative Appeals Tribunal for review of that decision. In undertaking that review, the Tribunal was required to take into account the best interests of any children. At the hearing before the Tribunal it became apparent that the applicant was the father of two other, younger, children. However, the Tribunal did not take the interests of those children into account on the basis that s.500(6H) of the Act prevented it (that is, because the children had not been referred to in a statement provided to the Minister at least 2 business days before the hearing).
One of the arguments developed by the Minister before the High Court was that the interests of the children was not “relevant” to the review because the appellant had not included it in the case he sought to present to the Tribunal. The Court rejected that argument. In doing so, the plurality stated, at [62]:
Secondly, the Minister's submission seeks to import into the inquisitorial review function of the Tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal.
It may be noted that the proceedings before the Tribunal in that case bore more adversarial characteristics than those before the Tribunal in these proceedings. The decision-maker has the right to appear, and to be represented, there are statements of facts and issues in contention, cross-examination and competing oral argument in hearings that are ordinarily held in public. None of those matters apply in the context of the review of a decision not to grant a protection visa. For that reason, the plurality’s reasons appear to apply with equal, if not greater force to the present proceedings.
In any event, on the Minister’s argument in these proceedings, the relevance of the applicant’s presentation of his case is limited to the extent to which the Tribunal was required to give reasons and the related issue of the proper understanding of those reasons. For that reason, it is unnecessary to consider whether the decision in Uelese means that notions of abandonment of claims, or other aspects of the conduct of a review application have any impact on the task of the Tribunal to review the delegate’s decision. I would, in any event, be slow to proceed on the basis that Tuiataalili had been overruled in circumstances where the High Court had refused special leave to appeal from the decision of the Full Court and, in Uelese, did not expressly consider that case. That is a question more properly left to a court higher in the judicial hierarchy than this one.
For reasons that will become clear, I accept the applicant’s contention that the issue of safety at Kabul airport was either expressly relied on by the applicant, or clearly arose on the material before the Tribunal in connection with relocation. The question that arises as a result of this is whether the Tribunal properly dealt with the issue.
The material before the Tribunal
The issue of internal relocation arose because it was the basis for the delegate’s decision. It was a subject addressed by the applicant’s four sets of written submissions to the Tribunal, each of which expressly relied on all previous submissions. The most extensive of those submissions were dated 18 May 2015, that is, prior to the Tribunal hearing which took place on 23 June 2015.
Those submissions were divided into 5 parts. The second part was headed “Fear of persecution – introduction, recent country information”. This part was divided into sections. The first, (2.1) concerned the threat of harm to the applicant as a Hazara Shia given increasing Taliban or Islamic State activity in in the Hazarajat, Parwan and Mazar I Sharif. Section 2.3 was headed “Fear of persecution, serious harm in Kabul – level of violence particular to Hazara areas of West Kabul.” In that section, the submission referred to a suicide attack on 17 May 2015 near the entrance to Kabul airport and noted that this would be where the applicant would be returned to Afghanistan. It also referred to attacks on the airport by the Taliban on 17 July 2014 and 12 May 2014.
In part 3 of the submission (headed “Complementary Protection and State Protection”) there was further reference to attacks on the airport:
[77]… Returning to Afghanistan will require him to travel on the roads outside Kabul and outside his home province in order to return to his home province, including along dangerous roads from Kabul airport, and from Kabul airport to the provinces. DFAT travel advice, dated 15th May 2015, confirms that Kabul airport itself is attracting increasing insurgent activity, as evidenced by the attack on 17th May 2015:
“There are ongoing threats against the Kabul International Airport and aircraft. Militants have carried out rocket attacks on the airport in 2014 which landed on the runway apron. Aircraft at the airport may be targeted by militants.”
(Emphasis in original)
The submissions enclosed a note by Professor William Maley, AM, concerning the return of Hazaras to Afghanistan. In that note, Professor Maley referred to two incidents in which Afghanis who had travelled from Australia were seriously harmed by Taliban while travelling on roads.
The issue of relocation was discussed at the Tribunal hearing on 23 June 2015. The Tribunal put to the applicant at the hearing that he would be able to fly to Mazar-e-Sharif from Kabul and avoid travelling by road. There is no evidence of how the applicant responded to this suggestion. However, in further written submissions given to the Tribunal after the hearing dated 15 July 2015, the applicant’s adviser wrote this:
[28]We ask the Member to consider that while [the applicant] may be able to fly into Mazar I Sharif, as a man without patronage networks to secure employment, he is likely to have to use local roads in order to secure employment.
I do not consider that this revoked or abandoned any reliance on the dangers that could face users of Kabul airport.
First, the submissions expressly referred to and maintained reliance on all previous written and oral submissions. Secondly, the statement is qualified in the sense that it addresses the possibility of being able to fly into Mazar-e-Sharif rather than the reasonableness of doing so. It does not suggest, for example, that the applicant will be able to safely fly. It does not address the possible risks at all. The applicant argued that the statement was further qualified in that it only addressed the ability to fly into Mazar-e-Sharif and not the ability to fly out of Kabul. I do not agree with that submission. That may be strictly what the submission says, but in my view the sense of the sentence is that the whole journey by air was a possibility: arrival at Kabul airport, take-off, flight and landing.
All of this material suggested the following: there had been recent, and ongoing attacks by insurgents on Kabul airport that posed a risk to people in the airport including in the planes on the runway; flying from Kabul to Mazar-e-Sharif was possible; and travelling by road to Mazar -e-Sharif was dangerous. This information was relevant to the issue of the reasonableness of any expectation that the applicant relocate to another area of Afghanistan. Put simply, the prospect of being killed en-route to a safe location is sufficient to justify a putative refugee seeking asylum in Australia, rather than the consular protection of his or her own country.
It will be recalled that the internal relocation principle arises in connection with the requirement that a putative refugee be outside his or her country of nationality “owing to” a well-founded fear of persecution. This was succinctly explained by Gageler J in Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 :
[40]Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
The Tribunal in this case did not appear to appreciate that connection. Rather, having found that it would be reasonable and practicable for the applicant to safely relocate to Mazar-e-Sharif where there was no real chance of persecution, the Tribunal concluded that his fear of persecution in Afghanistan was not well-founded: [51]. However, that is not the error relied on by the applicant and I leave it to one side.
The reasonableness of an expectation that the applicant relocate within Afghanistan was critical to the Tribunal’s decision. For that reason, it was an essential part of the Tribunal’s task of reviewing the delegate’s decision that it consider the information that was relevant to that issue. In my view, it did not consider the information about the attacks on Kabul airport and so fell into jurisdictional error.
The only references in the Tribunal’s reasons to the way in which the applicant might travel within Afghanistan are in [40] to [42]. The first two of those paragraphs refer to submissions about the torture and killing of two people on roads between Jaghori and Kabul and Ghazni City and Kabul, and the abduction of 97 Hazara civilians in a number of provinces. The Tribunal concluded that, “given this pattern [of abduction] there is a real risk of persecution in and around Mazar-e-Sharif”: [41].
In [42] the Tribunal states first that it accepts that there had been a sectarian attack in Mazar-e-Sharif in December 2011 and that incidents had occurred in other provinces as well as on roads in certain areas. In this respect, the Tribunal agreed with the submission of the applicant’s adviser and the opinion of Professor Maley set out above.
Following these findings is the only reference to flying within Afghanistan, at [42]: “As it was put to the applicant at the hearing, he would be able to fly to Mazar-e-Sharif from Kabul and avoid travelling by road.” This sentence does not contain any reference to, or consideration of the practical realities of the flight itself. There is no reference to insurgent attacks on planes at the airport or suicide bombings in the airport terminal. The only consideration apparently given by the Tribunal is that travel by plane would avoid the dangers that are involved in travel by road.
I do not agree with the Minister’s submission that, given the way in which the applicant presented his case and, in particular, the acceptance that flight was possible, the Tribunal was not required to set out any more detailed reasoning. I accept however, as the Minister submitted, that the Tribunal was aware of the submissions and information concerning the airport: it referred at least at a general level to the submissions in which they were contained. However, given that the dangers at Kabul airport were so obviously relevant to the issue of internal relocation, the failure by the Tribunal to refer to them at all leads me to infer that the Tribunal did not consider them in that context. The fact that it did not consider them might be understandable, given the fact that they were not front and centre of the applicant’s case; however, that fact did not undermine the fact that the Tribunal was required to consider them.
The sentence that follows the reference to flying raises a potential answer to the Tribunal’s error. The Tribunal notes that “[i]n any event, there are only very occasional incidents on the road to and from Mazar -e- Sharif.” The words “in any event” suggest the possibility that this was an alternative basis for the Tribunal’s conclusion that it was reasonable to expect the applicant to relocate. If that is so, that conclusion may not have been affected by the Tribunal’s failure to consider the safety at Kabul airport. That could mean either that there was no jurisdictional error, or a basis for exercising the Court’s discretion to refuse relief. However, in my view, this sentence was no more than an aside. The Tribunal accepted the applicant’s submissions about dangers on the road in Afghanistan. However, the Tribunal did not take the further step of finding that, in light of the relative infrequency of attacks on the roads to Mazar-e-Sharif, there was no real chance of harm on those roads. For that reason this sentence is no answer to the Tribunal’s failure to consider the material concerning the airport at Kabul.
Conclusion
For those reasons the Tribunal fell into jurisdictional error and its decision must be set aside and the Tribunal be required to complete its review of the delegate’s decision.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 9 December 2016
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