AKG16 v Minister for Immigration
[2016] FCCA 1656
•4 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKG16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1656 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether the Tribunal misapplied a relevant test – real chance test – whether the Tribunal erred in failing to address an aspect of the applicant’s claims – whether the Tribunal failed to consider the applicant’s fear of persecution – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 476, 499. |
| Cases cited: MZYXR v Minister for Immigration and Citizenship [2013] FCA 252. |
| Applicant: | AKG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 396 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 4 July 2016 |
| Date of Last Submission: | 4 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the First Respondent: | Ms N Blake Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 396 of 2016
| AKG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 22 January 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country.
The applicant was born in a particular province in Afghanistan and moved at the age of five or six to Kabul. The applicant remained in Kabul until almost an adult when he moved to Iran. The applicant’s family remained in Kabul for another almost eight years and then fled to a location in Pakistan and the applicant joined his family at that location. The applicant then attempted to move back to Kabul about four years later and lived there for five months as a taxi driver before returning to his family in Pakistan.
The applicant left Pakistan in 2012 when he arrived in Australia by boat and made an application for protection on 28 November 2012. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugee Convention reason and found that the applicant’s fear of persecution was not well founded. The delegate was not satisfied that there was a real chance of the applicant suffering harm should he return to Afghanistan and found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and refused the grant of a visa on 4 July 2013.
The applicant sought a review of the delegate’s decision on 6 August 2013. In support of that application submissions were provided by the applicant’s representative dated 4 November 2013 to the Tribunal. The applicant claimed to fear harm by reason of his being of Hazara ethnicity and by reason of being a Shia Muslim and/or by reason of having an imputed political opinion, for membership of a particular social group consisting of failed Hazara Shia asylum seekers or returnees or failed asylum seekers.
The applicant claimed to fear harm from the Taliban, al-Qaeda, and other insurgent groups, the state body or anybody else. In the submissions dated 4 November 2013 the applicant’s history was summarised and a section was headed “ Is the Applicant’s Fear of Persecution on Account of his Race and Religion Well-Founded”.
Under that section there was a reference to the general situation for Shia Hazaras in Afghanistan, the relative improvement for Hazaras, the deteriorating security situation in the context of which there was reference to a human rights watch world report referring to Afghans feeling enormous anxieties as the 2014 deadline for withdrawing international combat forces from Afghanistan looms. The submissions contended that a proper assessment of whether there was a real chance of persecution in the reasonably foreseeable future would include a consideration of the planned withdrawal
The submission also referred to the position of failed asylum seekers, whether State protection was available, whether it was reasonable for the applicant to relocate as well as complementary protection and the tests to be applied in relation to substantial grounds, real risk and significant harm. On 13 November 2015, the applicant was invited to attend a hearing to be held on 22 January 2016. The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter and represented by his registered migration agent.
The ground of the application is as follows:
The Tribunal erred by:
a. misapplying the test for determining whether the applicant is a person to whom Australia has obligations under the Convention; and/or
b. failed to address an aspect of the applicant’s claims;
by failing to consider whether the applicant had a well-founded fear of persecution on the basis of his ethnicity (Hazara) or religion (Shia Muslim) in the reasonably foreseeable future as distinct from the present or immediate future.
The Tribunal identified the relevant law including the reference to the fear of persecution for a Convention reason having to be a well-founded fear and identifying the issue in the present case as being whether the applicant was a person in respect of whom Australia had protection obligations being assessed upon the facts as they exist when the decision is made by requiring a consideration of the matter in relation to the reasonably foreseeable future.
The Tribunal also referred to the criteria for complementary protection and the ministerial direction under s.499 and the requirements of the PAN3. The Tribunal engaged in an assessment of the applicant’s claims and in particular referred to the applicant’s experience when he was in Kabul and noted that that was a very long time ago and found that it did not accept as a real chance or a real risk of what occurred to him then happening to him now or in the reasonable foreseeable future.
The Tribunal proceeded to refer to the overall current security situation in Afghanistan and Kabul referred to in the applicant’s country information that was submitted in respect of the situation for Hazara Shias. The Tribunal made reference to having given considerable weight to the DFAT report that was identified as being the most recent country information report and summarised different propositions extracted from the 18 September 2015 DFAT country information report.
The Tribunal also referred to a report by a particular professor and a Hazara issues paper issued by the Department of Immigration in March 2015. The Tribunal then noted that the DFAT report in September 2015 stated that the government maintains effective but not absolute control in major urban areas particularly Kabul. Reference was then made to particular paragraphs of the DFAT country information report at paras.2.29 and 2.30.
There was no express reference to para.2.33 under the heading “Security Situation”, which relevantly provides as follows:
2.33 Insurgent forces contest many areas of the country and no part of the country can be considered free from conflict-related violence. The situation remains fluid. While the government retains control of much of the country, particularly in the provincial and district centres, some areas are openly contested, with varying levels of control exerted by the government and by insurgents. The security situation across the country deteriorated significantly over the last 12-18 months, as anti-government groups intensified their efforts and the international military contingent gradually withdrew. The security situation is better in areas where government forces maintain strong control, such as major urban areas like Kabul, but attacks remain a common occurrence even in these areas (see also the 18 September 2015 DFAT Thematic Report on Conditions in Kabul).
The thematic report dated 26 March 2014 had also made reference to the uncertainty as a result of the withdrawal of troops at para.442. The Tribunal then made reference to the reports of regular insurgency attacks in Kabul by reference to the DFAT thematic report and took into account what was described as the primary targets. It was in those circumstances that the Tribunal found on the country information considered as a whole that the chance of the applicant being seriously or significantly harmed in such circumstances would be, at best, described as remote and not a real chance or real risk.
The Tribunal referred to the further proposition that, on the available country information, the Tribunal considered the risk of the applicant getting harmed by an attack by the insurgents was one faced by the population generally and not by the applicant personally and fell within s.36(2B)(c) of the Act. That provision refers to the requirement that there not be taken to be a real risk that any non-citizen will suffer significant harm in a country if the Minister is satisfied that the risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Paragraph 30 of the Tribunal’s reasons is as follows:
Considering the country information as a whole, I do not accept that·all Hazara Shias in Kabul face a real chance of persecution or significant harm now or in the reasonably foreseeable future from the Taliban, other Sunni groups or anyone else. I accept that the applicant is a Shia and will attend mosque and religious events; however, given the country information viewed overall, I find that the chance or risk he will be seriously harmed or significantly harmed is remote.
The Tribunal proceeded to engage in further analysis of the country information and, in particular, the position in Kabul and found, on the information viewed as a whole, that it did not indicate that any of the problems that the applicant would face would be due to any systematic discriminatory conduct by any act or acts required under s.91R(1)(c) of the Act, but would rather be due to his individual circumstances and the poor economic situation, government services and infrastructure that beset the city and the nation.
The Tribunal made reference to the country information viewed as a whole indicating that the applicant does not face a real risk of being deprived of his life, having the death penalty carried out on him or being subjected to torture. It was in those circumstances that the Tribunal said that the problems the applicant faced would not be as a result of any intentional act or omission so as to cause either cruel or inhumane treatment or punishment or degrading treatment or punishment.
The Tribunal said that, having considered the country information and the applicant’s individual circumstances, it found that the problems that the applicant faced upon return did not constitute significant harm within s.36(2B)(c), as they are faced by the population of the country generally and not by the applicant personally. The Tribunal did not accept that the applicant faces a real chance or a real risk of serious or significant harm in Kabul on account of his membership of a particular social group of failed asylum seekers or failed Hazari Shia asylum seekers or of returnees.
The Tribunal noted that there was no recent information that the returnees or failed asylum seekers or those who spend time outside Afghanistan or have left the country illegally have been seriously or significantly harmed in Kabul. The Tribunal made reference to the applicant’s particular circumstances and the age at which he had left Afghanistan and the experience he had when driving a taxi. The Tribunal had regard to the country information concerning the overall situation for Hazara Shias and failed returned asylum seekers from western countries and the country information indicating that the government maintains effective control of Kabul. The Tribunal found in the applicant’s circumstances it did not accept that the applicant faced a real chance of persecution in the reasonably foreseeable future in Kabul on account of being a Hazara Shia or for imputed political opinion or for membership of a particular social group consisting of failed Hazara Shia asylum seekers, returnees or failed asylum seekers at the hands of the Taliban, Al-Qaida, or insurgent groups, the state, or anybody else.
The Tribunal referred to having regard cumulative to the country information concerning the overall situation of Hazara Shias and failed asylum seekers from western countries and the country information that indicates that the government maintains effective control of Kabul . Taking into account the applicant’s individual circumstances, the Tribunal was not satisfied that the substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed from Australia to Kabul as a real risk that he would suffer significant harm in Kabul.
In those circumstances, the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. Counsel on behalf of the applicant contended that the Tribunal had failed to give genuine consideration to the issue of the reasonably foreseeable future in determining whether or not the applicant had a well-founded fear of persecution. Counsel for the applicant advanced that the Tribunal’s reasons, and in particular paras.26-29 should be read as addressing only the current position and not the reasonably foreseeable future and submitted that there is no actual engagement with the question of the reasonably foreseeable future taking into account the reference that had been in the submissions of the applicant at para.70 to what was then the prospect of the withdrawal of international troops and the reference to the withdrawal of troops in the 2015 country report and the 2014 Hazaras in Afghanistan and Pakistan report dated 26 March 2014.
Counsel for the applicant sought to place weight upon the decision in MZYXR v Minister for Immigration and Citizenship [2013] FCA 252. I accept the first respondent’s submissions that that decision is distinguishable based on the reasoning that was adopted and the structure of the report by the Tribunal in that case including the particular findings that the Court found supported a finding that the issue of the reasonably foreseeable future had not been dealt with at all in that case.
From the reference in the present Tribunal’s reasons to the question that the Tribunal had to determine under para.15 as well as the focus on the reasonable foreseeable future in the body of the Tribunal’s reasons in more than five places, I reject the submission that the Tribunal failed to address the issue of the reasonably foreseeable future in determining the applicant’s fear of persecution and whether it was well-founded.
On a fair reading of the Tribunal’s report in paras.26-29 the Tribunal was taking into account the future situation and not simply addressing a confinement to the present existing fact. The narrow reading of the Tribunal’s reasons advanced by counsel for the applicant is contrary to a fair reading of the reasons and is not correct. I find that the Tribunal properly engaged with the question that it was required to address in relation to whether the applicant faced a real chance of persecution now or in the reasonably foreseeable future, and that the adverse findings by the Tribunal were open and not the subject of any jurisdictional error.
There was no constructive failure to exercise the Tribunal’s jurisdiction and no jurisdictional error by misapplying the relevant test or failing to address the applicant’s claims. On a fair reading of the Tribunal’s decision and in particular its reference to the relevant law and the test to be applied in the present case it cannot be said that the Tribunal failed to consider whether the applicant had a well-founded fear of persecution on the basis of his ethnicity, being Hazara or his Shia religion in the reasonably foreseeable future. The Tribunal’s reasons were not confined to the present or the immediate future. There is no jurisdictional of the kind alleged in ground 1 of the application.
The application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 20 July 2016
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