AIA16 v Minister for Immigration
[2018] FCCA 3495
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIA16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3495 |
| Catchwords: MIGRATION – Protection visa – ITOA – relocation – reasonableness of the applicant relocating to Kabul – relevant test not applied – ITOA failing to apply correct legal principles – ITOA defective – declarations made. |
| Legislation: Migration Act 1958, ss.5H, 5J, 36(2)(aa), 48B, 195A, 417 |
| Cases Cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 CSJ17 v Minister for Immigration and Border Protection (2018) 328 FLR 431 Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZRFP v Minister for Immigration and Border Protection [2016] FCA 522 SZSLM v Minister for Immigration and Border Protection [2017] FCA 413 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 |
| Other Materials: Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, [1989] ATS 21 (entered into force 26 June 1987) Convention relating to the Status of Refugees, opened for signature 28 July 1951, [1954] ATS 5 (entered into force 22 April 1954) International Covenant on Civil and Political Rights, opened for signature 19 December 1966, [1980] ATS 23 (entered into force 23 March 1976) |
| Applicant: | AIA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ERNEST ZANATA IN HIS CAPACITY AS MANAGER, TPVA ASSESSMENT VICTORIA |
| File Number: | MLG 272 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Mr B Petrie |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
DECLARATION
The international treaties obligations assessment decided 4 February 2016 was not made according to law.
ORDERS
The first respondent, by himself or his department, officers, delegates or agents, is restrained from acting or relying upon the ITOA assessment.
The first respondent pay the applicant’s costs fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 272 of 2016
| AIA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ERNEST ZANATA IN HIS CAPACITY AS MANAGER, TPVA ASSESSMENT VICTORIA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this court on 15 February 2016, the applicant sought a declaration that the second respondent’s international treaties obligations assessment (“ITOA”) dated 4 February 2016 was not made according to law. He sought orders in the nature of an injunction restraining the minister from relying on the ITOA and he also sought orders restraining various parties from removing him from Australia until his claims under s 36(2)(aa) of the Migration Act (“Act”) were determined according to law.
In essence, the ITOA was conducted for the purpose of ascertaining whether the department should advise the minister that it was in the public interest for the minister to exercise his personal powers under the Act which if exercised would have had the effect of preventing the applicant from being removed from Australia. Those personal powers were set out in ss 48B, 195A and 417 of the Act. The High Court considered them in Minister for Immigration and Border Protection v SZSSJ.[1]
[1] (2016) 259 CLR 180
In this case the assessor undertook the ITOA and concluded that Australia did not owe non-refoulement obligations to the applicant.
In his further amended application, the applicant relied on two main grounds each underpinned by particulars subjoined to each ground. The first ground advanced the proposition that the ITOA assessor used the wrong test in assessing whether or not Australia’s treaty obligations were engaged in relation to the applicant. The second ground advanced the proposition that the assessor failed to give proper consideration to the reasonableness of relocation in the circumstances of the applicant. Alternatively, the applicant put his second ground on the basis that the reviewer’s finding that the applicant could reasonably relocate to Kabul was irrational or unreasonable.
The minister argued that the ITOA revealed no jurisdictional error.
In this case I was required to determine whether to make the declaratory relief and the restraints propounded by the applicant.
Synopsis
For the reasons that follow in my judgment ground two succeeded. The applicant is entitled to the declaration and injunction sought.
Relevant factual material
The applicant, a Hazara Shia Muslim from Jaghori area in Pakistan, who entered Australia on 15 April 2010 arrived as an irregular maritime arrival. On 12 July 2010 the applicant provided submissions in support of a refugee status assessment. On 3 September 2010 the minister’s delegate found that the applicant did not meet the definition of a refugee. The delegate found that the applicant was not a person in respect of whom Australia owed protection obligations.
On 22 September 2010 the applicant applied for independent merits review.
On 21 November 2011 the independent merits review decision maker recommended that the applicant was not to be recognised as a person in respect of whom Australia had protection obligations.
On 15 June 2015 officers of the minister’s department notified the applicant that the department would undertake a re-assessment of the applicant’s protection claims.
On 4 February 2016 an officer of the minister’s department found that non‑refoulement obligations were not engaged.
The applicant’s claims and the assessor’s findings
Before examining the applicant’s grounds of review, it is relevant to examine the assessor’s findings. The assessor accepted that –
a)the applicant was a Hazara Shia Muslim;
b)his home area was Jaghori;
c)he resided in Iran from 2000 to 2009 or thereabouts; and
d)his brother went missing in 2008.
The assessor recorded the matters the assessor did not accept. They included how the assessor did not accept that –
a)the applicant’s wife’s relatives had any association with the Taliban and that such was the reason for the applicant’s divorcing his second wife;
b)the applicant’s brother was pursued or kidnapped by the Taliban for any reason relating to the applicant’s wife’s family;
c)the applicant was known to the Taliban; and
d)the Taliban had the applicant’s photograph or were pursuing him in 2010 or that the applicant was on the Taliban’s list.
The assessor considered whether a real chance of persecution related to all areas of the receiving country. The assessor found that it did not.
The assessor considered whether the applicant could travel safely from Kabul to Jaghori in the Ghazni province where his family was located. The assessor found that there was a real chance of the applicant suffering serious harm when travelling from Kabul to the Ghazni province by road and that his treatment would be discriminatory and systematic by reason of his Hazara race, his membership of a particular social group and his status as a failed asylum seeker from a western country.
The assessor then considered whether there was a real risk the applicant would be subjected to significant harm in Kabul. The assessor considered that the applicant would face a real risk of kidnapping in travelling between Kabul and Ghazni but that the risk did not apply to Kabul.
The assessor found that it was reasonable for the applicant to relocate to Kabul where he did not face a real risk of significant harm.
In this court
The applicant applied for judicial review of the assessor’s decision by proceeding commenced on 15 February 2016. His grounds of review in the application by which he commenced this proceeding were unhelpful. With leave, the applicant replaced the original grounds with four grounds of his amended application. It is useful to set out the grounds of the amended application as follows –
1. The conduct of the ITOA by the Second Respondent was affected by jurisdictional error, in that the Second Respondent used the wrong test in assessing whether or not Australia's international treaty obligations were engaged in relation to the applicant.
Particulars
a. The Second Respondent applied statutory criteria, including those set out in sections 5J and 36 of the Migration Act 1958, which have no application to an ITOA.
b. The scope and content of Australia’s international treaty obligations are not co-extensive with the statutory criteria that apply to an application for a protection visa.
2. The Second Respondent was denied procedural fairness in that the Second Respondent departed from the declared intention to assess the applicant's situation against Australia's international treaty obligations.
3. The conduct of the ITOA by the Second Respondent was affected by jurisdictional error, in that the Second Respondent misapplied the test of ‘reasonable relocation’, insofar as that test is applicable to as assessment of Australia's international treaty obligations.
4. The finding of the Second Respondent that it would be reasonable for the applicant to relocate to Kabul was affected by jurisdictional error, in that it was so unreasonable that no reasonable decision maker could have made it.
Particulars
a. It was unreasonable to find that the applicant should initially relocate as a single man and be separated from his family.
b. Several of the Second Respondent’s findings regarding the safety of Kabul for a person in the applicant’s situation were irrational, in light of the country information and other evidence referred to by the Second Respondent and in light of inconsistent findings elsewhere in the ITOA.
c. It was irrational to find that the applicant could reasonably be expected to travel to Jaghori to sell a house owned by the applicant's family to fund the applicant's relocation to Kabul, having found that the applicant “faces a real chance of being kidnapped or killed if he were to travel by road from Kabul to Jaghori.”
With further leave, those grounds were amended yet again in the manner recorded in the applicant’s further amended application filed 16 August 2018. Ground one was untouched. A new paragraph two was introduced to become the only other ground pressed. Ground two was in the following terms –
The Second Respondent failed to give proper consideration to the reasonableness of relocation in the circumstances of the applicant, or alternatively, the Second Respondent’s finding that the applicant could reasonably relocate to Kabul was irrational and/or unreasonable.
Particulars
a.The Second Respondent failed to give proper consideration to whether it would be reasonable for the applicant’s wife and children to relocate to Kabul.
b.The Second Respondent failed to consider whether it was reasonable in the applicant’s circumstances for him to be effectively confined to Kabul, given its finding that there was a real risk of significant harm if he were to travel on the roads outside Kabul.
c.The Second Respondent’s finding (at p 37 of the ITOA) that the applicant could access funds by selling a house in Jaghori, which the Second Respondent held was “relevant to the consideration of whether he can reasonably relocate to Kabul”, was irrational given that the Second Respondent had found that the applicant faced a real risk of significant harm if he travelled from Kabul to Jaghori.
The hearing of this case proceeded on the grounds in the further amended application.
Before turning to the two grounds of review pressed, it is necessary to observe that in Minister for Immigration and Border Protection v SZSSJ[2] the High Court held that this court has jurisdiction to engage in judicial review of an ITOA and that under the ITOA process, the applicant must be given procedural fairness.
[2] (2016) 259 CLR 180
Further, consonant with the observations of the Federal Court in SZSLM v Minister for Immigration and Border Protection,[3] the scope of an assessor’s assessment pursuant to an ITOA was to assess whether various treaties imposed a duty of non‑refoulement in respect of the applicant, those treaties being the –
a)Convention relating to the Status of Refugees as amended by the 1967 Protocol (“Refugees Convention);[4]
b)Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;[5] and
c)International Covenant on Civil and Political Rights[6] or the Second Optional Protocol to the International Convention on Civil and Political Rights, Aiming at the Abolition of the Death Penalty.[7]
[3] [2017] FCA 413
[4] Opened for signature 28 July 1951, [1954] ATS 5 (entered into force 22 April 1954)
[5] Opened for signature 10 December 1984, [1989] ATS 21 (entered into force 26 June 1987)
[6] Oopened for signature 19 December 1966, [1980] ATS 23 (entered into force 23 March 1976)
[7] Opened for signature 15 December 1989, [1991] ATS 19 (entered into force 11 July 1991)
The court in SZSLM held that an assessment that applied different criteria to those set out in the three treaties identified above will be outside the task given to the assessor and thus any such assessment would be carried out without jurisdiction.
At a broader level, it is relevant to observe that an ITOA is undertaken to assess whether the applicant’s circumstances engage Australia’s non‑refoulement obligations under international treaties, a point seemingly common to both the applicant and the minister in this case. The ITOA is a step in the process preparatory to the making of a substantive decision for the purpose of assisting the minister in the exercise of non‑compellable powers under ss 48B, 195A or 417 of the Act.
Further, it is relevant to observe that the High Court has held in Plaintiff M61/2010E v Commonwealth of Australia[8] that an assessor undertaking an ITOA must make an assessment according to law and that Australian legislation as well as case law binds the assessor, a point observed by the court in paragraphs 88 and 89 of its reasons.
[8] (2010) 243 CLR 319
The minister made a general submission to the effect that certain holdings of Full Courts of the Federal Court of Australia have provided binding precedents that the assessor in this case was required to apply to the facts of this case. For example, the minister argued that for the purposes of the first ground the Full Court’s decision in Minister for Immigration and Citizenship v SZQRB[9] provided illumination. Similarly, for the purposes of the second ground the minister argued that the Full Court’s decision in AHK16 v Minister for Immigration and Border Protection[10] provided recent and binding authority on the question of the reasonableness of relocation. Applying those authorities, it was necessary for me to apply binding authority pertinent to the assessment of the question whether Australia owed non‑refoulement obligations under the several treaties that have been invoked in the circumstances in this case. I have done that.
[9] (2013) 210 FCR 505
[10] [2018] FCAFC 106
Ground one
Under this ground, the applicant asserted that the assessor applied the wrong legal test. The applicant said that at page 20 of its assessment the assessor applied the test prescribed by ss 5H and 5J of the Act for the definition of “refugee” whereas, so the applicant said, the assessor should have applied the test prescribed by art 1A(2) of the Refugees Convention. On behalf of the applicant, Dr McBeth contended that according to Kenny J in MZACXv Minister for Immigration and Border Protection,[11] jurisdictional error is demonstrated where, in relation to relocation, the relevant decision maker fails to consider the two limbs of –
a)whether there is, objectively, any appreciable risk of the feared persecution in the place of proposed relocation; and
b)whether it would be reasonable in the sense of practicable for the individual applicant having regard to all his personal circumstances, to relocate to that place.
[11] [2016] FCA 1212
Dr McBeth said a failure to consider both limbs or the conflating of the two limbs would give rise to jurisdictional error, citing MZACX. He said that in this case the assessor applied the tests from ss 5H and 5J and not the test from the Refugees Convention. Dr McBeth said that in applying the test under ss 5H and 5J rather than the test under art 1A the assessor fell into jurisdictional error. By way of analogy, Dr McBeth relied on the decision of Perram J in SZSLM in which his Honour held that an assessor undertaking an ITOA was not required to consider the Convention on the Rights of the Child.[12] Perram J held that the assessor conducting an ITOA had no choice but to carry out what the assessor was instructed to do and that the assessor had no jurisdiction to carry out what the assessor had not been instructed to do. Perram J held that it was very difficult to see that a consideration of the Convention on the Rights of the Child could be a mandatory consideration to which the observations of the High Court in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd[13] applied.
[12] Opened for signature 20 November 1989, [1991] ATS 4 (entered into force 2 September 1990)
[13] (1986) 162 CLR 24
In this case that convention was not mentioned by the assessor. Nevertheless, Perram J’s decision is of use in explaining how an assessor must not take into account matters the assessor is not required to take into account.
Scattered throughout the ITOA were references to several provisions of the Act. The applicant argued in this case that it was erroneous for the assessor to have considered those sections because the only standards to be applied, so the applicant said, were the provisions of international treaties. Accordingly, the applicant argued that the assessor was wrong when referring in the assessor’s reasons to ss 5H and 5J of the Act when undertaking any consideration of “refugees”.
I do not agree.
In SZRFPv Minister for Immigration and Border Protection[14] Perry J held that it was competent for an ITOA assessor to use provisions of the Act even though an ITOA is not an assessment of a protection visa.
[14] [2016] FCA 522
Let me turn to the more general argument advanced by the applicant to the effect that it is an error to apply the statutory criteria under the Act for refugee or for complementary protection obligations because (so it was said) those statutory obligations diverge from Australia’s non‑refoulement obligations under international law. Several observations follow from that proposition.
First, as counsel for the minister contended, the applicant advanced no authority to support that proposition.
Second, as the High Court held in Plaintiff M61/2010E, an assessor must make an assessment according to law and that Australian legislation and case law is binding.
Third, a body of jurisprudence in the Federal Court has considered the inter‑relationship between the provisions of the Act and relevant provisions in international treaties. In Minister for Immigration and Citizenship vMZYYL[15] the Full Court spoke of the different definitions and tests that existed in the complementary protection regime in s 36(2)(aa) on the one hand as opposed to the test in international treaties of the same subject matter.
[15] [2012] FCAFC 147
In that case the court expressly declined to ask how one of the relevant treaties (or any one of them) applied in the circumstances of the case as the circumstances of that case were governed by the applicable provisions of the Act. A similar approach was applied by the Full Court in SZTALv Minister for Immigration and Border Protection.[16] Perry J did likewise in SZRFPv Minister for Immigration and Border Protection.[17]
[16] [2016] FCAFC 69
[17] [2016] FCA 522
Fourth, as a matter of international law, obligations under international treaties will only become part of Australia’s domestic law when the relevant treaty is specifically embraced by legislation, relevantly here, by federal legislation. The High Court has held to that effect in several authorities, one of the most important being Minister for Immigration and Ethnic Affairs v Teoh.[18] Once the treaty is adopted by domestic legislation, the legislation itself becomes the relevant instrument, here, the Migration Act. That piece of legislation then falls for application and interpretation according to recognised principles of Australian law.
[18] (1995) 183 CLR 273
In my view, the assessor made no error in invoking ss 5H and 5J of the Act. It seemed to me that the assessor would have fallen into jurisdictional error if the assessor had done otherwise.
In my view ground one failed.
Ground two
The second ground related to the reasonableness of relocation. The applicant argued that the assessor’s finding that the applicant could reasonably relocate to Kabul was irrational or unreasonable.
Before examining the assessor’s treatment of the evidence in relation to relocation, it is useful to record two important matters. First, as Markovic J held in SZVRAv Minister for Immigration and Border Protection,[19] whether a person can reasonably be expected to relocate depends on the framework set out by the applicant’s particular objection to relocation.
[19] [2017] FCA 121
Second, as Mortimer J held in MZANX v Minister for Immigration and Border Protection,[20] a fact intensive investigation must be engaged in so as to determine the reasonableness and practicability of relocation for the specific applicant under consideration. Aspects of Mortimer J’s fact intensive inquiry were addressed by my own decision in CSJ17 v Minister for Immigration and Border Protection.[21]
[20] [2017] FCA 307
[21] (2018) 328 FLR 431
Here, the treatment of the reasonableness and practicability of the applicant’s relocation was perfunctory. The assessor did not descend to the detail espoused by Mortimer J. The minister submitted that Mortimer J’s level of scrutiny required by the assessor was “not a universally applicable one”, citing in support a decision of another judge of this court. Whether or not that comment is true is beside the point as the decision of Mortimer J binds me whereas the other does not.
Her Honour’s decision was an appeal from my own decision in MZANX v Minister for Immigration and Border Protection.[22] I followed her Honour’s line of reasoning in CSJ17. Her Honour’s reasoning is relevantly indistinguishable in this case. The assessor’s consideration of the matter in this case fell short of the examination that Mortimer J held was necessary. In this case the applicant stated and the assessor considered this statement that he would need to relocate with his family and very little else was said on the matter.
[22] [2017] FCCA 2564
Applying Mortimer J’s reasoning, the assessor omitted to give separate consideration to the availability of health care as well as the availability of housing that the applicant and his family might occupy. In my view the assessor should have considered those issues. The assessor’s failure to consider those issues was important. It represented an omission to correctly apply the law.
Lest it be said that the assessor’s decision in April 2016 correctly applied the applicable prevailing law as at that date, and that Mortimer J’s decision in 2017 in MZANX[23] post‑dated the assessor’s decision, I do not agree that the significant issues from MZANX[24] only arose from the date of her Honour’s decision. As her Honour pointed out, the learning available from well prior to 2016, especially in the leading academic learning on the point from Professor Hathaway, was to the effect that detailed consideration of the circumstances “on the ground” (her Honour’s words) was called for. That was not done in this case. In Randhawa vMinister for Immigration, Local Government and Ethnic Affairs[25] the Full Court spoke of the need for careful consideration of the practical realities facing an applicant. I do not suggest that necessarily some checklist must be satisfied before it could be said that an assessor has carefully considered the practical realities facing an applicant. However, even in 2016 when the assessor conducted this ITOA, any careful consideration should have included the matters to which the Full Court adverted in Randhawa. That was the prevailing authority at the time. It bound the assessor in 2016 when the assessor made the ITOA.
[23] [2017] FCA 307
[24] [2017] FCA 307
[25] (1994) 52 FCR 437
In my view the assessor’s treatment in this case of the matters that should have been considered fell significantly short of what was required. In my view it was no answer for the minister to support the ITOA in this case by contending that the applicant’s propositions about relocation were brief and therefore the assessor needed to have been concerned only with those brief propositions. A consideration of the “framework” of the objection to relocation (as Markovic J used that phrase) is not limited to the words the applicant used. As Allsop J held (as the chief justice then was) in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs,[26] the tribunal (relevantly here, the assessor) in addressing relocation is not required to elaborate on every aspect of its practical application. But the assessor in this case knew that the applicant had a family. At a practical level, the assessor is to be taken to have been aware that issues relating to the available health care for the applicant’s family were relevant, as were issues relating to the family’s security as well as issues relating to available housing. In this case no attention was devoted to those matters. That was an error. Those issues should have been considered by the assessor. They were not.
[26] [2006] FCA 216
It follows that ground two succeeded. The applicant is entitled to the orders he sought in his amended application. He is entitled to declaratory relief, an injunction and an order remitting this case for consideration by a differently constituted assessor. The applicant is entitled to his costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 30 November 2018
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