ALX18 v Minister for Home Affairs

[2018] FCCA 3020

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALX18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3020

Catchwords:
MIGRATION – Grant or refusal of visas – Procedural fairness.

MIGRATION – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions.

MIGRATION – Review of decisions – Protection visa decisions – Fast track review process – Conduct of review – Additional information.

Legislation:

Migration Act 1958 (Cth), ss.5(H)(1), 36(2)(a), 36(2)(aa), 473GB, Pts 5, 7, 7AA

Cases cited:

Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198

Applicant: ALX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 97 of 2018

Judgment of: Judge Jarrett

Hearing date: 21 September 2018

Date of Last Submission: 21 September 2018

Delivered at: Brisbane

Delivered on: 21 September 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr King

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 9 July 2018 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 97 of 2018

ALX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority.  The applicant in the proceedings lodged an application for a Safe Haven Enterprise visa on 15 June, 2016.  He did that following his arrival in Australia and his designation as an unlawful maritime arrival. 

2. His application for a Safe Haven Enterprise visa was rejected by a delegate of the first respondent on 29 May, 2017.  Because he was an unlawful maritime arrival and he was caught by Part 7AA of the Migration Act 1958, the decision of the first respondent’s delegate was referred to the second respondent for review, according to the provisions of Part 7AA of the Act.

3. That review was conducted on the papers. For the purposes of that review, the applicant provided a statement and notes which responded to the delegate’s findings. The second respondent considered that material in the way in which it was required to do by Part 7AA. That is to say, the first requirement was to consider each of the various aspects of the information or argument made by the applicant to the second respondent so as to determine whether it was new information for the purposes of Part 7AA, and then to decide whether it ought to receive that new information.

4. The second respondent went through that process.  It treated some of the applicant’s notes as argument rather than information and thus took them into account.  It treated some of the matters that he raised, in particular material that he pointed to in relation to security incidents that had happened in Kandahar and in other places in Afghanistan, and it determined on an incident-by-incident basis essentially, whether the information concerning that incident was new information for the purposes of the Act or not.  The information relating to some incidents was considered as new information and information relating to some incidents was not.  And so, in that way, the second respondent sifted through the material provided by the applicant on the review and determined which of that material it ought to take into account and which it should not.  Having regard to the second respondent’s reasons about those matters, there is nothing which indicates that the second respondent has fallen into error in the way in which it has dealt with that task. 

5. The second respondent then, in its reasons for decision, summarised the applicant’s claims.  Those claims were of relatively short compass.  He claimed to be an Afghani national of Pashto ethnicity and he claimed that his father, uncle and cousin had been killed by the Taliban because his father had worked for the government.  He claimed that his father, uncle and cousin had been travelling home together in a taxi when they were stopped, taken out of the taxi, and shot. 

6. The applicant’s mother, three younger brothers, elder sister and brother-in-law, according to the second respondent’s findings, continue to reside in Kandahar City in Afghanistan.

7. The second respondent noted that the applicant claimed that his family were from an area called Singasar, but his father was originally a farmer and he grew grapes on the family land, but when the fighting with the Taliban, the Afghan army and the international forces commenced, the area in which he lived became a focus for that fighting.  That seems to have been borne out by the country information to which the second respondent has had regard.  Because of the fighting, the applicant’s family moved to Kandahar City for some time.  There is a discrepancy in the claims that the applicant made about the length of time his family lived in Kandahar City, and that was resolved by the second respondent.  I will come to those findings shortly.  The applicant’s family moved back, according to his claims, to Singasar in about 2011, after his father secured the government job to which I have already referred. 

8. The applicant claimed that when his father was working for the government, he received a letter in 2011 telling him to stop working for the government.  His father ignored the letter, for reasons which are not particularly relevant now, and he then received a second.  The second was worded more strongly than the first.  It was soon after the receipt of the second letter that his father was shot. 

9. The applicant claimed that after the death of his father he too received a letter which threatened him and warned him against taking over his father’s government job.  The applicant claimed that at that point, he left his village and returned to Kandahar City, where he stayed for a short time before he travelled to Pakistan. 

10. The second respondent noted that the applicant’s claim was that he feared being targeted by the Taliban on return to Afghanistan, because his father was killed by the Taliban in 2011 because of his work for the government and the applicant had received similar threats, although he had not worked for the government.

11. He claimed that he also feared harm on return to his village because the local people would be aware that he had been living in Australia and he would be perceived as not being a proper Muslim, as somebody who was a foreigner and an agent of overseas government interests and would be targeted by the Taliban. 

12. The second respondent accepted that the applicant was an Afghani national of Pashto ethnicity.  After reviewing the material before it, the second respondent concluded that the applicant had lived in Kandahar City from 2005 until his departure from Afghanistan in 2013, with the exception of a small period of residence in his home village in 2011 to 2012.

13. The second respondent found that the applicant’s family continued to reside in Kandahar City and the second respondent concluded that Kandahar City was the area to which the applicant would return if he returned to Afghanistan.  That finding is important. 

14. As to the applicant’s father’s employment and his subsequent death, the second respondent accepted the applicant’s claims about those matters.  It did so against country information reviewed by the second respondent which indicated that areas west of Kandahar City, including the district in which the applicant’s family lived, were regarded as long-term entrenched Taliban strongholds, where sustained military operations were implemented during 2010.  The second respondent accepted that country information made clear that the receipt of individual or community warnings by villagers and locals from the Taliban, often in the form of what the second respondent describes as “night letters”, were commonplace.  Those letters warned individuals or communities to stop working for or supporting the government or international forces upon pain of death.  The use of those letters in Kandahar was apparently widespread.  On the basis of that material and the applicant’s claims, the second respondent concluded that the applicant’s father most likely received the letters that the applicant claimed he had.

15. The second respondent accepted that the applicant’s father was of adverse interest to the Taliban and that he was killed due to his position as an elder who was in government employment.  The second respondent also accepted that the applicant was threatened by the Taliban in Singasar as a warning not to engage in similar employment to that of his father, and the second respondent accepted that the applicant left Singasar due to a fear of being killed.  The second respondent, however, concluded that the applicant was not of adverse interest to the Taliban in Kandahar City because of his father’s former work, where he had been able to reside without being at risk of harm for approximately a year prior to his departure.

16. On the basis of those findings, the second respondent concluded that whilst the applicant feared being targeted by the Taliban on return to Afghanistan, his fear was not well-founded, because there was not a real risk of serious harm to him should he return to Kandahar City.  The operative part of the second respondent’s decision appears in paragraphs 28 and 29 of its reasons for decision, which are as follows:

    28.    The applicant fears being targeted by the Taliban on return as his father was killed by the Taliban in 2011 due to his father’s government work and because the applicant was threatened although he did not work for the government.

    29.    I accept that in 2011 the applicant’s father was killed by the Taliban. Over 6 years have elapsed since his father died and while I accept that the applicant would be returning to Kandahar city where there are security incidents, I do not accept he would be targeted for reason of his association with his father. The targets of the Taliban are government officials and people associated with the international community, and civilian groups such as human rights defenders, journalists, lawyers and judges, aid workers and civil servants with whom the applicant has no links. The applicant himself has not worked for any government agency and even if the Taliban became aware of the applicant’s return, I am not satisfied that after a period of over six years the applicant would be pursued or harmed by the Taliban or that he would be perceived to be collaborating with the international community or the Afghan government and therefore be considered to hold anti-Taliban views due to his father’s former government employment or for any other reason in Kandahar city. I am not satisfied that there is a real chance of the applicant facing any harm if he returns to Kandahar city due to an imputed political opinion arising from his father’s former employment or former position as an elder in Singasar.

17. The second respondent concluded that there was not a real chance of the applicant facing any harm if he returned to Kandahar City due to an imputed political opinion arising from his father’s former employment or former position as an elder in Singasar.

18. As to the applicant’s claims that he feared harm on return to his village because the local people were aware that the applicant had been living in Australia and that he would be perceived as not being a proper Muslim who was a foreigner and an agent and targeted by the Taliban, the second respondent considered the country information before it about the way in which returnees from western countries were treated.  In that respect, it is important to note that before the delegate there was certain country information, namely reports prepared by the Department of Foreign Affairs and Trade, upon which the delegate relied for the purposes of the delegate’s decision.

19. By the time the matter was determined by the second respondent, a further report had been issued by the Department of Foreign Affairs and Trade that updated the position of returnees to Afghanistan, amongst other things, and the second respondent took that updated country information into account rather than rely upon the earlier DFAT report used by the delegate.  The second respondent concluded that the applicant would return to Kandahar City where the population was overwhelmingly Pashtun. 

20. The second respondent, however, noted that the reports and incidents of violence that had been referred to in various reports by the United Nations High Commissioner for Refugees and the Department of Foreign Affairs and Trade regarding returnees to Afghanistan did not refer to a risk of harm in Kandahar City. According to the second respondent’s consideration of that material, it was not an area in which returnees are targeted on the basis that they were perceived as being westernised. The second respondent was not satisfied that there was a real chance that the applicant would be harmed due to his father’s former employment, or as a returnee from a western country, or due to generalised violence upon return to Kandahar City, which he could access without a real chance of harm. Accordingly, his application for a protection visa on the basis that he was a refugee, for the purposes of s.5H(1) and s.36(2)(a) of the Migration Act, was refused.

21. The second respondent considered the applicant’s claim for complementary protection under s.36(2)(aa) of the Act and concluded, on the basis of the findings that it had made in respect of the refugee claims, that there was no basis upon which Australia owed complementary protection obligations to the applicant. The decision under review was affirmed.

22. Here, the applicant has filed an amended application for review in which he sets out his grounds.  They are discursive in nature and appear under the heading “Breach of Procedural Fairness”.

    1. Breach of Procedural Fairness

    The First Respondent breached procedural Fairness and did not act fairly in reaching to the unreasonable decision by did not accepting the evidence of the visa application in the absence of any contrary evidence to the applicant claim. This decision was taken in the absence of any logically probative adverse evidence or information as required by the principle of Procedural Fairness.

    The First Respondent did not put sufficient weight to those evidence presented by the applicant and accepted by the First Respondent in reaching their decision.

    The First Respondent did not have real insight of the relevant factors and information, security and political circumstance in Kandahar and in Afghanistan in general.

    The First Respondent should have given the benefit of the doubt to the applicant and accept his account of the persecution and the chance of harm to him in Afghanistan as recommended by the UNHCR guidelines too. In contrast the decision was based on the First Respondent subjective opinion in absence of relevant contrary information.

    The Second Respondent had sufficient information regarding the applicant father and uncle and cousin killing by Taliban but did not accept the evidence in totality and made an unfair choice of "pick and choose what they like" but reject the rest of the evidence in the absence of any probative contrary evidence or better say any evidence. The second respondent ignored everything and sealed the breaches, failure and error of the First Respondent by affirming the decision of the First Respondent. Consequently made the same error as the First Respondent and consequently breached the rule of Procedural Fairness.

23. Having regard to the second respondent’s reasons for decision, it is difficult to appreciate that there has been any breach of procedural fairness.  The grounds of the amended application are more redolent of a complaint about the ultimate decision arrived at by the second respondent. 

24. The applicant complains, in his amended application for review, that the second respondent did not act fairly in reaching an unreasonable decision by not accepting his evidence.  But, as the second respondent’s reasons make clear, it accepted all of his evidence, really.  There was very little that was rejected.  There were some discrepancies that the second respondent resolved, for the reasons set out in its decision record, but by and large, each and every of the claims made by the applicant was accepted. 

25. The real complaint seems to be that the conclusion arrived at by the second respondent was illogical, irrational and that the outcome was unreasonable.  It is that ultimate conclusion – that he would not face a real risk of serious harm or a real chance of significant harm if he was to return to Kandahar City – that is the subject of the complaint made by the applicant, in my view. 

26. The reasons of the second respondent set out how it reached the conclusions that it did.  There was a basis, demonstrated in the second respondent’s reasons, for its conclusions about the risk of harm to the applicant should he return to Kandahar.  The foundations of that conclusion appear to be, first, the finding that the applicant had lived in Kandahar City for at least 12 months without adverse attention from the Taliban.  That is a finding which was plainly open to the second respondent.  Second, the lack of any information in the country information considered by the second respondent about the targeting of people such as the applicant by the Taliban in Kandahar City, and third, the second respondent’s conclusions about the risk faced by the applicant from generalised violence in Kandahar City.  Each of the findings made by the second respondent and the conclusions that it drew from those findings were open to the second respondent.  It might have been that another decision maker might have come to a different conclusion, but that is not the test. 

27. Having regard to those matters, in my view, the second respondent’s decision is not attended by jurisdictional error, and the application for review, on the basis of the grounds raised in the amended application for review and more generally, should be dismissed.

28. There is one other matter to mention, and that is the matter raised by the first respondent in his written submissions, paragraphs 27 and 28. This is a matter which involves a certificate that was issued under s.473GB of the Act. That is a certificate which provides for the documents covered by it not to be disclosed to the applicant. Certificates of that nature, both under Part 5, Part 7 and Part 7AA of the Migration Act, have attracted judicial attention in recent times. For present purposes, the relevant authority is the Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198.

29. The Minister submits that, having regard to the decision of the Full Court in that case, there is no error in the way in which the second respondent dealt with the certificate in this case.  I agree. 

30. In all of those circumstances, the amended application that was filed 9 July, 2018 must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.

Date: 25 October, 2018