ALT16 v Minister for Immigration

[2017] FCCA 1357

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1357

Catchwords:
MIGRATION – Whether it was reasonably open for the Tribunal to find that the applicant’s home was in Kabul – finding of fact that was reasonably open to the Tribunal – no failure to accord procedural fairness.

Legislation:

Migration Act 1958 (Cth)

Applicant: ALT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 417 of 2016

Judgment of: Judge McNab

Hearing date: 8 June 2017

Date of Last Submission: 8 June 2017

Delivered at: Melbourne

Delivered on: 23 June 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 3 March 2016 be dismissed.

2. The Applicant pay the Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 417 of 2016

ALT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 3 March 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 5 February 2016 under the Migration Act 1958 (Cth) (‘Migration Act’). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection visa.

2. The application lists two ground of review:

   (1) The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   (2) I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

3. The applicant appeared before the Court with the assistance of an interpreter from the Hazargi language to English.

4. Leave was granted to the applicant to file an amended application by orders of Registrar Buljan on 20 July 2016. No amended application was filed. At the commencement of the hearing I asked the applicant whether he had anything he wished to add to the grounds set out in his application. He stated that he thought that the Tribunal was wrong in finding that his home was in Kabul. He said that in fact his home was in Sheikh Ali. He also said that he believed that the Tribunal was wrong in not believing him in relation to the fear that he held in relation to the Taliban in Kabul should he return there.

Factual Background

1. The applicant is a citizen of Afghanistan who arrived in Australia as an illegal maritime arrival on 16 August 2012. During his entry interview, the applicant claimed to fear harm on the basis of his Shi’a religion at the hands of two Sunni tribes.

2. On 7 February 2013, the applicant lodged an application for a Protection visa with the assistance of lawyers. The application was accompanied by a statutory declaration made by the applicant on 12 December 2012 wherein he repeated claims that he made during his entry interview and explained that he feared harm based on his race being Hazara, religion being Shi’a, his ethnicity being Hazara and as a Shi’a Hazara. The applicant gave details in his statutory declaration about events causing him to flee his village Sheikh Ali and his time in Kabul.

3. On 5 December 2013, the applicant attended a Protection visa interview with his representative. Subsequent to that interview, on 15 January 2014, the applicant’s representative provided submissions which supplemented the material already provided to the delegate and added that the applicant claimed to fear persecution because of his membership of a particular social group being a failed asylum seeker who fled to the West. The delegate was also provided with detailed country information with submissions that it would not be reasonable for the applicant to return to Kabul.

4. On 13 August 2014, a delegate of the Minister refused to grant the Visa.

5. On 16 September 2014, the applicant sought merits review in the Tribunal and provided the Tribunal with written submissions on 28 January 2016. He appeared at the hearing of the Tribunal on 4 February 2016 assisted by his lawyer.

6. On 5 February 2016, the Tribunal affirmed the delegate’s decision. The Tribunal’s decision summarised the applicant’s claims to fear harm:

   a)as a Shi’a and as a Hazara;

   b)as having an imputed political opinion as being opposed to the Taliban due to his race; and

   c)because of his membership of a particular social group being a failed asylum seeker.[1]

   [1] Tribunal decision [21]-[22].

7. The Tribunal found that the applicant had a high level of connection to Kabul as a resident over a long period of time (about 11 years) and considered that Kabul constitutes a home area for the applicant.

8. It accepted the applicant’s claims that the applicant is a Hazara Shi’a, that there was a conflict involving Sunni tribes in Sheikh Ali and that Sunnis threatened and subsequently killed his brother and that they later threatened the applicant and warned him to abandon his land in Sheikh Ali.[2]

   [2] Ibid [26].

9. The Tribunal did not accept the applicant’s claims to have been the subject of home invasions in Kabul by members of the Karamali tribe affiliated with the Taliban in 2012 prior to him leaving Afghanistan to be credible. The Tribunal did not accept that on two occasions in 2012 the applicant’s homes were invaded by members of the Karamali tribe, other Sunnis, the Taliban or anyone else.[3]

   [3] Ibid [27].

10. The Tribunal found after considering extensive country information that there was no more than a remote chance the applicant would be seriously or significantly harmed in Kabul by the Taliban, members of the Karamali tribe, ISIS, or other Sunni groups or anyone else on account of him being a Hazara Shi’a, an imputed political opinion or due to his membership of a particular social group.[4]

    [4] Tribunal decision [28]-[35].

11. The Tribunal found that the applicant would not face a real chance or real risk of serious or significant harm in Kabul for the reasons outlined in his claim and also found that there was no particular reason for him to need to travel outside of Kabul and that it was reasonable for the applicant to remain Kabul and to re-establish his life and to seek employment there.

Consideration

1. The Tribunal at [5] – [20] set out the relevant statutory provisions in relation to the grant of a Protection visa.

2. The Tribunal identified the applicant’s claims, considered them and made findings in relation to them based on that consideration. The Tribunal rejected the applicant’s claims to fear serious or significant harm having accepted country information in relation to Hazara Shi’as in Kabul. Otherwise the Tribunal rejected aspects of the applicant’s claim and did so for reasons which were comprehensible and logical.

3. In relation to the matter raised by the applicant at the commencement of the hearing, it was reasonably open for the Tribunal to find that the applicant’s home was in Kabul and it did so for the reasons it expressed, particularly on the basis that the applicant had resided with his family in Kabul for about 11 years and had worked there for that period. In relation to the applicant’s submission that the findings of credibility were wrong, those findings were findings of fact which were reasonably open to the Tribunal.

Procedural Fairness

1. Whilst this ground is not particularised, having read the decision and read the submissions that were filed on behalf of the applicant, both in relation to the hearing before the delegate and before the Tribunal, reference to which documents was made by the Tribunal in [20] of the decision, I can discern no failure on the part of the Tribunal to accord procedural fairness in accordance with the requirements of the statutory scheme. For these reasons I dismiss the application and order that the applicant pay the respondent’s costs.

2. In relation to the ground that the applicant had made an application for legal aid and was awaiting a decision, the Court notes that the decision under review was made in February 2016 and no evidence was placed before the Court regarding such an application. Otherwise this is not a recognisable ground of judicial review.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 23 June 2017