AIP18 v Minister for Home Affairs
[2019] FCCA 2088
•31 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIP18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2088 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made a jurisdictional error by forming a state of satisfaction under s 473DD in an arbitrary or capricious manner – whether the Authority failed to properly consider the applicant’s claims – whether the Authority misapplied the ‘real chance’ test – whether the Authority engaged in irrational fact finding – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473CB, 473DC, 473DD |
| Cases cited: BVD17 v Minister of Immigration and Border Protection (2018) 261 FCR 35 |
| Applicant: | AIP18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 195 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 26 June 2019 |
| Date of Last Submission: | 2 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughes |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr Kaplan and Ms Hooper |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The applicant to pay the costs of the first respondent in an amount agreed upon by the parties, or as taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 195 of 2018
| AIP18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan. The applicant claims to have left Afghanistan in 2012 when he was 17 years of age. The applicant arrived in Australia by boat on 01 November 2012. The applicant applied for a Safe Haven Enterprise visa on 24 March 2016.
A delegate of the Minister refused to grant the visa on 17 March 2017. The applicant was then referred to the Immigration Assessment Authority (“the Authority”) for a merits review of his application. On 20 December 2017, the Authority affirmed the delegate’s decision to refuse the visa. The applicant now seeks judicial review of the Authority’s decision.
New Information
At paragraph five of the Authority’s decision, reference is made to two submissions by the applicant. The first contained a five-page submission and five new country information reports. The Authority had regard to two of Professor Maley’s reports which were ready before the delegate in post-interview submissions and were not new information. At paragraph six of the decision, the Authority rejected a US State Department Report dated 03 March 2017 and an International Organisation for Migration (IOM) report dated 10 August 16, as well as a Samuel Hall report from 2014. The Authority determined this was not credible personal information which was not previously known and had it been known, would have affected the applicant’s claims (see s 473DD (b)(ii) of the Migration Act 1958 (Cth) (“the Act”)).
At paragraphs 8 to10 of the decision, the Authority considered additional material provided by the applicant’s representative, which the applicant’s representative stated went to the core issues about services available to Afghan returnees which, it was contended, were inadequate or non-existent. At paragraph 10 of the decision, the Authority found these were not exceptional circumstances to justify consideration the new information.
At paragraphs 11 and 12 of the decision, the Authority dealt with a range of new country information. The Authority was not satisfied it could not have been provided to the delegate before they made their decision. The information was rejected pursuant to s 473DD of the Act, as there were no exceptional circumstances.
Paragraph 13 of the decision considered an updated report of Professor Maley dated 01 October 17. The Authority noted two early versions of his advice had already been provided. Reports from the Edward Rice Centre and Blue Mountains Refugee support group were also considered as updates of the situation in Afghanistan and broadly consistent with information already before the Authority. The Authority rejected those documents pursuant to s 437 DD of the Act, on the basis that there was no exceptional circumstances to justify consideration..
Paragraph 14 of the Authority’s decision considers updated September 2017 Department of Foreign Affairs and Trade (“DFAT”) reports, which it accepted as new country information. The Authority agreed the updated reports took into account relevant security developments in the second half of 2016 and through to 2017, in particular a number of attacks to the Shia Hazara population. The Authority acknowledges the situation remained highly fluid. The Authority found exceptional circumstances to justify consideration of these new and updated reports.
At paragraph 15 of the decision, the Authority noted a request by the applicant to respond to any information that may impact on him adversely. The Authority determined that an invitation to comment or to attend an interview was not necessary.
The Applicant’s Claims
These are set out in paragraph 16 of the Authority’s decision and may be summarised as follows:
·He is a single male of Hazara ethnicity and the Shia Muslim religion. He was born in Kabul but moved with his family to Ghazni Province when he was a child.
·He left Afghanistan in August 2012 when he was 17 years old, due to the on-going security issues.
·They were a lot of Taliban in his area targeting Shia Muslims and Hazara. He also experienced attacks on his high school, perpetrated by the Taliban.
·He feared he would be killed by the Taliban or Islamic State (Daesh) upon return.
·Relocation and state protection are not available in Afghanistan.
·He feared harm for reasons of his ethnicity as a Hazara, his Shia Islam faith, his perceived support for the west, as a returnee from the west and the accumulative effect of that profile.
The Authority’s decision
At paragraph 19 of the decision, the Authority noted that the applicant lived, studied and worked in Ghazni city. Most of his family continue to live and work in the area.
At paragraphs 20 to 29 of the decision, the Authority dealt with a bogus drivers licence provided by the applicant as proof of identity. At paragraph 29 of the decision, the Authority concluded the applicant’s evidence about the document cast doubt as to his overall credibility.
At paragraphs 30 to 31 of the decision, the Authority accepted the applicant is a Shia Hazara, from a village in in the Ghazni City district, and that he is a low level adherent of Shia Islam faith.
At paragraph 33 of the decision, the Authority noted the applicant confirmed his family, with the exception of one brother, are still in Ghazni. The applicant’s father is deceased. The Authority noted the applicant was asked whether or not the family faced harm after his departure and he confirmed they had not.
At paragraphs 34 to 37 of the decision, the Authority accepted that a brother, who was a tailor, fled to Iran due to him being targeted by the Taliban. The applicant’s brother was targeted as a result of making uniforms for the Afghan army. At paragraph 39 of the decision, the Authority concluded that the applicant had no adverse profile with the Taliban connected with his brother’s tailoring business, making uniforms for the Afghan Army and the applicant was not at risk for that reason.
At paragraphs 40 to 41 of the decision, the Authority dealt with the risk of the applicant being forcibly recruited by the Taliban as a young, able-bodied Hazara. The Authority accepted credible risks of forced recruitment or coerced recruitment.
At paragraph 42 of the decision, the Authority acknowledged that the Taliban are active in the applicant’s home city of Ghazni City. In particular, the following words are used:
While the country information highlights that Taliban is active in this area, it does not indicate that the Taliban exercises effective control in the Ghazni City district. The country information states that the Taliban operate in several districts, and are capable of conducting coordinated attacks, including in his home area. It does not go beyond this.
At paragraph 43 of the decision’[, the Authority concludes that:
Given his age, the limited incidence of forced recruitment, and the fact that he would not be returning to live in an area under Taliban control, I find there is not a real chance of him being forcibly recruited by the Taliban (or any other AGE (Anti Government Element)) or that he is at any chance or risk of harm in refusing to cooperate with any such recruitment, as a young able-bodied Hazara male, or otherwise.
At paragraph 46 of the decision, the Authority concludes that the applicant has no support or political opinion in favour of the Taliban. On the basis of the applicant’s limited profile and having regard to the country information, the Authority was not satisfied that the applicant would be seriously harmed by reason of actual or imputed political opinion or profile.
At paragraphs 47 to 48 of the decision, the Authority recounts that at the applicant’s visa interview he stated his reasons for departing Afghanistan was due to security issues. The applicant stated his brother said he should go. The applicant denied experience of harm in Afghanistan and confirmed his family had not faced any concerns since he left the country. The Authority noted that the applicant laid a claim in his visa interview that there had been attacks on his school.
At paragraph 49 of the decision, the Authority notes in the applicant’s written statement that he experienced many traumatic events, including witnessing bomb blasts and shootings. At paragraph 50 of the decision, the Authority noted that Ghazni Province, where the applicant is from, is one of the most volatile provinces in Afghanistan, that security is fragile and the Taliban pose a major challenge.
At paragraph 51 of the decision, the Authority accepted that the applicant witnessed violence and bombings and attacks on his school. The Authority noted that the applicant had not been harmed directly. The Authority concluded that the applicant was not at risk of being harmed in a school environment as he had ceased studies.
At paragraph 52 of the decision, the Authority accepted as plausible that the applicant’s brother-in-law may have been asked to pay taxes to the Taliban.
At paragraph 53 of the decision, the Authority concluded the applicant did not have a profile of being a person associated with a government, military, security forces, the media or the international community. The Authority concluded the applicant did not have such a profile and would not be at risk upon the applicant’s return to Afghanistan for those reasons.
At paragraph 55 of the decision, the Authority found the applicant did not have a chance or risk of being seriously harmed due to generalised or insurgent violence. It found the risk was credible but remote in Ghazni Province. At paragraph 56 of the decision, the Authority concluded the risk of harm due to generalised and insurgent violence was not the result of his race, religion, nationality, membership of a particular group or political opinion and that accordingly, requirements of s 5J(1)(a) and s 5J(4)(a) of the Act were not satisfied.
At paragraph 57 of the decision, the Authority concluded that the applicant would return to Ghazni City and not Kabul to live. At paragraph 58 of the decision, the Authority accepted an escalation of attacks against Shias in Kabul and other areas of Afghanistan but that the country information did not indicate attacks against Shias in Ghazni.
In paragraph 60 of the decision, the Authority concluded, based on the applicant’s limited profile as a low level Shia adherent, that the applicant would not be at risk of serious harm on the basis of his Shia religion in his home area of Ghazni City.
At paragraphs 61 to 63 of the decision, other than the security situation on the road, the Authority found that ethnic targeting Hazaras was not a significant feature in Ghazni City. The Authority concluded that, while acknowledging Ghazni City was still a volatile and insecure province, with a high number of security incidents, country information did not indicate Hazaras or Shias were systemically targeted on the basis of ethnic or religious profiles.
At paragraph 64 of the decision, the Authority accepted there were higher risks to Hazaras in areas other than Kabul or Hazarajat. The Authority gave weight to the absence of reporting of recent attacks in Ghazni.
At paragraphs 66 and onwards of the decision, the Authority reviewed the risk to Hazaras travelling by road, including within Ghazni province. The Authority noted DFAT stated in their report in 2016, Hazaras travelling by road between Kabul and Hazarajat faced a greater risk than other ethnic groups. DFAT noted that Hazaras in or out of Hazarajat were at particular risk. At paragraph 71 of the decision, the Authority noted that other than on the return trip from Kabul to his own home area in Ghazni City, the applicant would have few reasons to travel outside of his home area. This decreased the potential for the applicant to be involved in incidents on the roads.
At paragraph 72 of the decision, the Authority concluded country information indicated few risks associated in walking from the applicant’s home to Ghazni City. The risks of an incident or attack was considered credible but remote.
At paragraph 73 of the decision, the Authority concluded that there is only a remote chance of serious harm from the Taliban or any other groups. The Authority was also not satisfied there was a real risk of harm in the applicant’s home area of Ghazni City due to his ethnicity, religion or profile as a Shia Hazara. At paragraph 75 of the decision, the Authority accepted the applicant would return to Kabul and that he would be there for a few days but there was no real chance that harm would occur while in Kabul. At paragraph 76 of the decision, the Authority accepted the risks to Hazaras travelling by road were credible, but the chances of serious harm were remote given the applicant’s limited need for travel.
At paragraphs 77 to 80 of the decision, the Authority dealt with risks associated of being a returnee from a western country. At paragraphs 81 to 84 of the decision, the Authority concluded that the applicant could take reasonable steps to modify his conduct and dress to protect himself from being identified as a westerner returnee. These steps were considered reasonable and relatively minor inconveniences. They would not conflict with characteristics fundamental to the applicant’s identity or conscience or require him to conceal an innate or immutable characteristics.
At paragraph 86 of the decision, the Authority concluded the applicant did not meet the requirements in s 36(2)(a) of the Act.
Paragraphs 87 to 93 of the decision deals with complementary protection issues. For similar reasons outlined above, the Authority concluded that the applicant did not meet the requirements of s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the decision of the delegate to refuse the applicant a Safe Haven Enterprise visa.
Grounds of Appeal
Leave was granted for a further amended application which contains three Grounds of Appeal. A further ground was added during the hearing by leave. The grounds are as follows:
Ground 1
The second respondent (IAA) made a jurisdictional error by forming a state of satisfaction under s 473DD in an arbitrary or capricious manner.
Particulars
a) The applicant provided the Delegate two reports by Professor William Maley dated 22 November 2016 and 22 December 2016. These reports form part of the material before the IAA under s 473CB of the Act therefore, not new information.
b) The applicant sought to put, before the Authority, a further report (the “Third Report”) by Professor Maley dated 1 October 2017, which post-dated the decision of the Delegate and which was materially different to the two reports provided by the Delegate.
c) The IAA found there were no exceptional circumstances for considering a “Third Report” solely on the basis, that the “two earlier versions of the advice are already before me” (please see [13] of the IAA decision at CB 908 Volume 2). It was arbitrary or capricious to form that state of satisfaction without engaging in the differences between the “Third Report” and the two previous reports.
Ground 2
The IAA made jurisdictional error by failing to consider the applicant’s claims, or an integer of that claim, that he faced a real chance of persecution in Afghanistan by reason of the fragility and fluidity of the circumstances in Afghanistan.
Ground 3
The IAA misapplied the ‘real chance’ test in s 5J of the Act.
Particulars
The IAA made findings of ‘credible risks’ to the applicant which were sufficient to satisfy that test.
Ground 4
The IAA engaged in irrational fact finding at paragraphs [41] – [43].
Applicant’s Submission
In the applicant’s written submission, in relation to Ground 1, it was contended that the decision not to consider the “Third Report” by Professor Maley, was legally unreasonable, in that no reason was given for rejecting it. It was suggested that there can in fact be no rational or reasonable basis for it not to have been considered. The applicant accepted that the test for legal unreasonableness as being stringent is found in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 (“SZVFW”) at 412 per Kiefel CJ at paragraph [11].
In the present case, it was submitted by the applicant that no justification was given for the rejection of the document and none could be found. It was submitted that on a materiality basis, the up-to-date information may have made a difference. In his oral submissions, Mr Hughes of counsel, on behalf of the applicant, suggested that it was wrong to reason from a momentary pause in incidents within Afghanistan, that things may get better over-all. Mr Hughes submitted that the updating of documents shows that the ongoing risks and fluidity within Afghanistan continues.
Mr Hughes submitted that the decision contained at paragraph 13 and 14 of the Authority’s decision, not to admit the “Third Report” was arbitrary and capricious, as it was appropriate to look at the most recent material where the situation was very fluid. Mr Hughes suggested that the updated report from Professor Maley was very material and there were no grounds for refusing to admit it, bearing in mind that the Authority had determined their exceptional circumstances to admit the DFAT updated report. As a matter of fairness, if the DFAT report was admitted, then the Maley reports should have been admitted as well.
Counsel for the applicant relied upon SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 at 573, paragraph [40] where His Honour Rares J said:
If the decision-maker has an actual notice of recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject matter, scope and purpose of s 36(2)(a) require the decision maker to base his or her decision, as to whether the fear claimed is well-founded, on that information [Peko-Wallsend 162 CLR at 45].
The Court however, notes in relation to this submission, that it was the applicant’s representative in fact who supplied the DFAT reports to the Authority and this was a matter where the Authority chose to admit the updated DFAT reports but not the Maley report.
In regards to Grounds 2 and 3, Counsel for the applicant submitted that these matters could be reasonably discussed together. Counsel indicated that it was important to look at the substance of what a well-founded fear of persecution was. The Authority had misapplied this by not considering if the applicant has a well-founded fear based upon past information but rather, the Authority should have done what Professor Maley, in his reports, counselled it to do by looking forward as to what could happen if the applicant returned to Afghanistan.
On a number of occasions, the Authority decided there was a credible but remote risk. It was submitted that while the purpose of the test reflected in s 5J of the Act was not whether a person would actually suffer harm, but whether they had a well-founded fear. Counsel submitted that the applicant being asked to return to an area where the Taliban was in fact active, although it was not under their control could amount to well-founded fear. Counsel suggested that simply because of a finding that the applicant’s family do not share a risk profile of a person at risk in Ghazni, does not mean there was no chance of the applicant being seriously harmed. It was noted that in paragraph 62 of the decision, the Authority found that the country information confirms Ghazni is a volatile and insecure province, where insurgents are operating in various districts and frequently carry out activities resulting in high level security incidents. It was also noted that in paragraph 64 of the decision, the Authority accepted that there were risks to Hazaras in Ghazni, but that they faced lesser risks of being affected by conflict related violence than Hazaras living in Kabul. That was qualified on the basis that the Authority gave way to the absence of recent reporting of attacks or other systemic conduct against the ethnic group in Ghazni.
Given the very fluid and volatile nature of the security situation in Afghanistan generally, and as acknowledged by the Authority, in Ghazni, it was submitted that the mere fact that there may have been a lull or less security incidents within Ghazni, did not mean that the applicant did not have a reasonable basis for a well-founded fear that was not farfetched. Given that Professor Maley’s report contained additional information as to more up-to-date security incidents, this again pointed to the unreasonable and capricious nature of the decision to reject the Maley report, but allow the DFAT reports. Strengthening this submission was the conclusion of the Authority in paragraph 72 of the decision that:
While the absence of recent attacks against the Hazara population in Ghazni Province does not preclude the possibility of future attacks.
Counsel for the applicant drew the Court’s attention to Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 per Kenny, Griffiths and Mortimer JJ. This case concerned an applicant from Zimbabwe who claimed protection on the basis of his political activities within Zimbabwe. At paragraph [38] the Court said this:
The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant’s claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality.
Earlier in the paragraph the Court had said:
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.
Counsel for the applicant submitted that there were cycles and spikes in violence which was specifically acknowledged in the reports, that the situation was both fluid and volatile. Even if the Authority was satisfied that at the current point of time, when the review took place, information indicated that there may be less attacks and/or incidences in Ghazni, this was no guarantee that they would not spike in the foreseeable future. As a result, it was reasonable for the applicant to continue to have a well-founded fear.
Ground 3 deals with the use of the language by the Authority where it said that risks to the applicant were credible but remote. Counsel made references to Chan Yee Kin v Minister of Immigration (1989) 169 CLR 379 (“Chan”) per Dawson J at 397.
On the other hand, it is also clear enough that a fear can be well-founded without any certainty, or even probability, that it will be realized.
Later on at page 398, His Honour said
A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.
It was submitted that the whole purpose of the test reflected in s 5J of the Act was not whether a person actually would suffer harm but whether they have a well-founded fear. It was submitted that the Authority had specially found at paragraph 62 of the decision, that there were a high number of security incidents and that Hazaras were particularly at risk on the roads (paragraph 72 of the decision).
Whilst the Authority used the words “credible, but remote” it was submitted that this was not the same as farfetched, but that a credible and remote risk could still give rise to a well-founded fear.
The Court in Minister for Immigration and Ethic Affairs v Guo Wei Rong (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572 referred to Chan:
In the same case, McHugh J said [32] that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of persecution is well below 50 per cent.
It was submitted that the Authority whilst using the words “credible, but remote” had in fact misapplied the test because a fair reading of all the material indicated that there was a sufficient basis, given the fluid and volatile nature of the security situation in Afghanistan to have a “well-founded fear”. In particular, the situation in Ghazni City where the Taliban, who were acknowledged to be active, although they did not have a capacity to exercise effective control over the city, was more than sufficient to ground a well-founded fear.
Ground 4 attacks the Authorities findings at paragraph 43 that ‘there is not a real chance of [the applicant] being forcibly recruited into the Taliban (or any other AGE)’. This was argued on the basis that while the Taliban did not have effective control over Ghanzi City, they were active and there was a real chance the applicant could be targeted for forced recruitment. Effective control did not mean that the Taliban, could at times of their choosing, undertake activities, simply they could not undertake activities all the time. Thus the chance was real and not remote, giving rise to real chance.
Submissions by the First Respondent
Mr Kaplan of Counsel, on behalf of the first respondent, submitted in regards to Ground 1, that the Authority had acted in a reasonable manner in respect of the consideration of the Maley Report pursuant to s 473DD of the Act. Mr Kaplan argued in his written submissions that s473DD of the Act did not confer discretion upon the Authority (cf, for example s 473DC(3)). Rather, s 473DD of the Act imposes a statutory prohibition on the Authority “considering new information” and that prohibition applies unless there are exceptional circumstances to justify the new information and the new information meets one of the requirements under ss 473 DD (b)(i) or (ii) of the Act. Mr Kaplan noted that there was no requirement for the Authority to provide in their written reasons, a statement as to the exercise of the procedural decision in the course of the review. That is, there is no requirement for reasons for the exercise of a discretion; BVD17 v Minister of Immigration and Border Protection (2018) 261 FCR 35, 45 (“BVD17”) per Flick, Markovic and Banks-Smith JJ at paragraph [42]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 per French CJ, Bell, Gageler, Keane and Gordon JJ stated at 185 paragraph [25]:
It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision (5), and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate (6).
Mr Kaplan submitted there was nothing unreasonable, as set out in paragraphs 13 and 14, in the decision, to consider the two reports of DFAT, which also acknowledge that it was a highly fluid and evolving situation in terms of the security situation in Afghanistan. The DFAT report, which are contained at pages 605 - 653 of the Court book and particularly page 615, indicate that the security situation does vary by location. In the circumstances where Professor Maley’s report merely provided the generalised update to his previous conclusions, which it was conceded were that nowhere in Afghanistan was safe, there was no jurisdictional error in failing to admit the “Third Report”. Mr Kaplan submitted that the DFAT reports did exactly same thing, in a more comprehensive way.
Further, Mr Kaplan argued that there is a threshold error which if accepted, meant that that Ground 1 must fail. Mr Kaplan submitted that Ground 1 seeks to attack the rejection of the document based on legal unreasonableness when it applies to a discretionary power. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649, Gummow J held, referring to the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 that:
The limited role of a Court in reviewing the exercise of administrative discretion must be constantly borne in mind. The point, reiterated by leading United States scholars is that “judicial review can be a source of excessive discretion as well as a means of limiting discretion
Mr Kaplan suggested s 473DD of the Act confers no discretionary power, rather than it confers duty to consider the material, provided that material meets the requirements of the sections.
In relation to Ground 2, it was submitted that the Authority had failed to consider the applicant’s claim regarding fragility and fluidity of the circumstances in Afghanistan. Mr Kaplan argued that the fluid situation is not a claim per se (Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs) (2003) 77 ALJR 1088 at 1092, paragraph [24] per Gummow and Callinan JJ). The fact that a circumstance may be fragile or fluid is not sufficient enough to make a claim in a relevant sense, as this does not result in a well-founded fear. It was suggested it was not component or integer in a claim for protection. This was because it did not deal with any of the matters described in s 5J(1)(a) of the Act being a well-founded fear, due to the matters set out in that section. Mr Kaplan argued for that reason alone, that claim should be rejected if this argument was not successful. Mr Kaplan submitted that the circumstances of fluidity or fragility, as it pertains to the real chance in this case, was not limited to just past events, but was used to look to the future. Mr Kaplan submitted that at paragraphs [37][38][39] of the decision and in other areas, that the Authority undertook a reasonable and practical exercise of looking to the past, to then judge to the future as to whether or not the a fear was well-founded.
In DLB17 v Minister for Immigration and Anor [2018] FCCA 1299 (“DLB17”) at paragraph [17], Smith J said the following:
Against that background it is clear that, when the Authority found that the chance of harm coming to the applicant was “credible but remote”, it was making a factual assessment that the risk of harm, while believable, did not rise to a level that amounted to a “real chance” of persecution. So understood, the reasons of the Authority do not reveal any misunderstanding of the law or irrationality or unreasonableness. For that reason, there are no real prospects of the ground succeeding
Mr Kaplan again pointed to the decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 where it was found that the most reliable course on predicting the future is in fact to have an analysis of the past in order to form a view as to what might happen in the future. Mr Kaplan suggested there were a significant number of references in the Authority’s decision to both past events and then looking into what might occur in the future. Accordingly the correct test was used.
In relation to Ground 4, Mr Kaplan in supplementary submissions, argued that the reasoning of the Authority was not ‘extreme’ illogicality or irrationality such as to constitute jurisdictional error. It was further submitted that the question of the accuracy of, and the weight to be placed upon, country information are matters which a Court on judicial review cannot interfere as per NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at paragraphs [11], [13] and [14] per Gray, Tamberlin and Lander JJ
Applicant’s Submission in Response
Mr Hughes of counsel, on behalf of the applicant, suggested that the decision to not consider Professor Maley’s report when it was an updated report, was in fact worse and requirement to give reasons does not matter. In this case the question to be asked is whether or not it was arbitrary or capricious not to admit the report in all of the circumstances. Mr Hughes submitted that the legislation requires the function conferred under s 473DD of the Act to be exercised reasonably and that there was no reason to reject Professor Maley’s “Third Report”. Mr Hughes noted that the “Third Report” was the most updated report and was in fact, newer than the two DFAT reports admitted and relied upon in the decision.
As to the threshold question, Mr Hughes submitted that the Authority made a decision and formed a state of satisfaction that no exceptional circumstances existed to consider the admission of the “Third Report”. Mr Hughes submitted that the principle of legal unreasonableness still applies to s 473DD of the Act.
In relation to Ground 2, Mr Hughes accepted that the Authority, in the decision, clearly did show that they were looking forward but that it lacked the consideration of what the fluidity or volatility in the security situation in the country might mean, in respect of a well-founded fear. Mr Hugh’s made the point that the fact that the Taliban were not able to exercise an effective control in Ghazni city, did not mean that they may not be able to actually exercise control in the future and that there was no real engagement in what the future might hold by the Authority.
In relation to Ground 3, Mr Hughes acknowledged the comments of Smith J in DLB17, but submitted that whilst the Authority may have used the correct words, they had not applied the correct concept. Mr Hughes suggested that the credibility of any threat must be looked at in context. Mr Hughes submitted that the fact finding in paragraphs 41 - 43 is irrational and goes to the root of the decision.
Considerations
Ground 1
Section 437DD of the Act provides a very limited statuary scheme for the admission of new information. There must first be exceptional circumstances and it must satisfy one of the criteria’s in s 473DD (b) (i) or (ii) of the Act. At paragraph 13 of the decision, the Authority noted that the updated country information did not of itself constitute an exceptional circumstance. The Authority noted that there were two versions of Professor Maley’s reports before the Authority and that “these reports were broadly consistent with the information already before me”.
At paragraph 14 of the decision however, the Authority considered there were exceptional circumstances to justify the admission of the September 2017 DFAT report. The Authority noted considerable developments in the security situation relevant to the applicant and his claim profile, in particular the number of attacks against Hazara people.
A review of Professor Maley’s “Third Report” by the Authority, although not specifically referred to in the decision, appears to have been undertaken for the conclusion to be reached that “it was broadly consistent with information already before me”. I reject the submission that the Authority gave no reason for rejecting the report. It clearly did. Further, I agree with Mr Kaplan’s submission that, following the principles set out in BVD17, which I quoted above, there was actually no requirement for reasons to be given for the exercise of the discretion. That is subject however, to the overarching requirement that any decision under s 473DD of the Act should not be irrational, illogical or unreasonable. A fair reading of the “Third Report” indicated that it comes to the same broad conclusions as early reports, being that nowhere is safe in Afghanistan. It merely adds to the previous reports by providing additional information of security incidents in the latter half of 2017.
Given the decision to admit the DFAT of September 2017, I am not satisfied that the decision to exclude Professor Maley’s “Third Report” amounts to the very stringent test of legal unreasonableness, given the restrictive nature of the operation of s 473DD of the Act.
I am also not satisfied that the exclusion of the “Third Report” would have made a material difference to the overall outcome given the similarity of all the conclusions of all three reports.
Ground 2
Ground 2 asserts the failure to consider the extraordinary fluid nature of the overall security situation and in doing, so the Authority failed by only looking back. I agree with the first respondent. This ground suggests a misapplication of the real chance test. I am satisfied that the Authority went about its task by reference to the past, but in my view, with a very keen eye to the future. The Authority acknowledged the lack of past harm to the applicant or his family and gave that considerably weight. The Authority came to that conclusion after setting out all the information it was aware of. Whilst the conclusions of the review might be conclusions that a reasonable person might disagree with, that is not sufficient to constitute jurisdictional error by way of legal unreasonableness – Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at 648 paragraph [131].
The claims of the applicants were considered at paragraphs 50, 55 and 62 of the Authority’s decision, in terms of the fluidity and volatility but were found to be insufficient to constitute a well-founded fear. I am not satisfied that any jurisdictional error is apparent in Ground 2.
Ground 3
This ground alleges the misapplication of the real chance test. It is clear that the Authority found there were credible risks at paragraphs 65, 72 and 75 of the decision, but that these risks were remote. Chan indicates the real chance test “does not weigh the prospects of persecution, but equally, it discounts what is remote or insubstantial” per Toohey at 407. DLB17, at paragraph [17] per Smith J, indicates that a risk which is credible but remote, is not sufficient to give rise to a well-founded fear.
I am satisfied that a credible but remote risk is not only consistent with the language in Chan and DLB17 but it is a relevant factual finding that did not amount to a real chance of persecution. Again, I am not satisfied that jurisdictional error is made out in Ground 3.
Ground 4
This ground relates to the risk of forcible or coerced recruitment into the Taliban, given the applicant’s gender and age. Country information indicates the Taliban are active within Ghazni City but do not have effective control. The Authority found that there was not a real chance of the applicant being forcibly recruited by the Taliban or any other AGE. The finding is based on country information at 41- 43 of the Authority’s decision and the fact that the applicant had not previously been threatened to join the Taliban or any other AGE, did not having any direct interaction with that group and that he would not be returning to an area under direct Taliban control.
The weight to be given to country information is a matter for the Authority as per NAHI at paragraphs [11], [13]-[14]. The Authority also found at paragraph 43 that the applicant is not ‘at any chance or risk of harm in refusing to cooperate with any such recruitment’. This was supported by country information discussed at paragraph 41 that ‘the use of force only occurs in exceptional cases’.
It is to be noted that when the applicant left Afghanistan he was only 17 years of age. It might be inferred that he had not at that point reached an age where he might be the subject of recruitment action by the Taliban. Further the fact that he had not previously been threatened to join the Taliban must carry little weight given he had left Afghanistan when he was still young. Further, while the applicant had not had any direct interaction with the Taliban it was accepted that his brother had been forced to flee to Iran as a result of threats from the Taliban due to the brother, who was a tailor, making uniforms for the Afghan Army.
While the conclusions may be questionable in the light of all the available information, I am not satisfied that the conclusions reach the very high standard required for them to be classified as ‘extreme’ illogicality or irrationality as per Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at 648 paragraph [132] per Crennan and Bell JJ. I am therefore not satisfied that jurisdictional error has been made out in relation to Ground 4.
Conclusion
The application is dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 31 July 219
12
2