Ant18 v Minister for Home Affairs

[2019] FCCA 830

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANT18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 830

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account the whole of s 36(2B) of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: ANT18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 61 of 2018

Judgment of: Judge Street

Hearing date: 20 March 2019

Date of Last Submission: 20 March 2019

Delivered at: Adelaide

Delivered on: 20 March 2019

REPRESENTATION

Counsel for the Applicant: Mr T Cadd

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Counsel for the Respondents: Mr P d'Assumpcao

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely upon the amended ground 3 as identified on the applicant’s submissions filed 18 March 2019 and the court dispenses with the need to file an amended application.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND FOUR HUNDRED AND SIXTY SEVEN DOLLARS ($7467).

DATE OF ORDER: 20 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 61 of 2018

ANT18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 11 January 2018, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 24 December 2012. The applicant claims to fear harm because he will be killed by Kuchi nomads or the Taliban because of ongoing conflict with Shia Hazaras in his home area, and also by reason of the accusation that his and his late father fought against those groups. The applicant fears he would face significant or serious harm because of his religion and ethnic profile as a Shia Hazara. The applicant also fears harm by reason of being a failed asylum seeker returning from a Western country.

3. On 23 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 28 March 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions which were expressly referred to in the Authority’s reasons. The Authority referred to the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. The Authority identified new information and considered the new information consistently with the requirements of s 473DD of the Act.

5. The Authority summarised the applicant’s claims. The Authority referred to transfer of funding by the applicant and found the applicant had not been credible or honest about the money transfers to his family and found he did not provide truthful evidence about the location or residence of his family, and the fact that they continued to live in Kabul in Afghanistan. The Authority also identified reasons for doubting the applicant’s claim his father is deceased in relation to the transfer of funds.

6. The Authority referred to the applicant’s claims that he fears harm in his home region. The Authority found that the chance of the risk that the applicant faces serious or significant harm in his home region is remote. The Authority found the applicant would not face any risk of being harmed by Kuchis or outside his former home area, such as in Kabul. The Authority was satisfied the applicant and his family were not involved in conflicts between Hazaris and Kuchis in Kabul, or that the applicant would have land in Kabul which would give rise to tensions between the two groups, if he would return to live there.

7. The Authority found there is no real chance that the applicant would be harmed by Kuchi nomads or Taliban for these reasons in his home area of Kabul, whether in connection with his past period having lived in a particular village, his father’s death, his profile as a Shia Hazara, or for any other reason.

8. The Authority referred to accepting the applicant’s ethnicity and religion as a Shia Hazara. The Authority found that there is not a real chance of the applicant being seriously harmed on the basis of his religion and/or ethnicity, or for any related profile, by Islamic State in Khorasan Province (“ISKP”) in Kabul.

9. The Authority was not satisfied there is a real chance of the applicant being seriously harmed in Kabul by the Taliban, Anti-Government Elements “(AGEs”), or any other group or person for reasons of his religion and/or ethnic profile as a Shia Hazara or any related profile.

10. The Authority did not accept the applicant was at risk of homelessness or drug addiction as claimed. The Authority referred to the applicant’s medical condition and was satisfied the applicant could address and access management and rehabilitation in Kabul. The Authority did not consider that the applicant would be unable to access, or be denied access, to medical treatment for any of the reasons claimed.

11. The Authority found there was no real chance of the applicant facing discrimination for reasons of his religious or ethnic background that would, separately or cumulatively, amount to serious harm. The Authority found there is no real chance the applicant would be seriously harmed for reasons of his religion and/or ethnic background, or any related profile. The Authority found the applicant’s fears of persecution in relation to his claims were not well-founded.

12. The Authority was not satisfied there was a real chance of the applicant being seriously harmed as a returnee from Australia, as a person who sought asylum, or for any other reason, any other related opinion or profile within Kabul, his home region or elsewhere in the country.

13. The Authority referred to country information in relation to persons who might be imputed with a risk profile. The Authority was satisfied the applicant had no such profile or political opinion and found the applicant would not have such a profile in his home country.

14. The Authority was satisfied the applicant would have a significant familiarity with the cultural factors as a result of his time living in Afghanistan and would be comfortable doing so.

15. The Authority found that it would be reasonable and a relatively minor inconvenience for the applicant to take steps to avoid identifying his link to Australia. The Authority was satisfied that if the applicant took these steps to modify his behaviour, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in a way or to do any of the things contemplated by s 5J(3)(c)(i)-(vi) of the Act.

16. The Authority was satisfied the applicant could take reasonable steps to modify his behaviour to avoid what the Authority considered a remote chance of persecution for his time spent in the West.

17. The Authority found there was not a real chance that the applicant would be seriously harmed as returnee from the West, as a person who has sought asylum, or for any other related actual or imputed political opinion or profile. The Authority found the applicant’s fear of harm was regarded as not well-founded.

18. The Authority found the applicant faced only a remote chance of being harmed from generalised and insurgent violence and found the requirements in s 5J(1)(a) of the Act would not be satisfied.

19. The Authority found it was reasonable for the applicant to remain in Kabul and that he would not return to his home region. The Authority found that the applicant failed to meet the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

20. The Authority turned to the issue of complementary protection and expressly referred to the definition of significant harm. The Authority’s reasons annex the relevant legislative provisions to the Authority’s reasons.

21. The Authority referred to having found that Kabul is the applicant’s home area and that he would not face a real chance of serious harm in Kabul for reasons related to his time in a particular village, the killing of his father, or due to his past conflicts with the Kuchis or Taliban in his former home area. The Authority referred to having found there was no real chance of the applicant facing serious harm for reasons of his religion, ethnicity, as a returnee from the West, as a person who sought asylum, any related political opinion or profile, for any reason related to his medical condition, or generalised and insurgent violence. The Authority identified for the same reasons and having regard to the other considerations, the Authority found there is no real risk of the applicant facing significant harm for these reasons in Kabul.

22. The Authority referred to having found the applicant would not return to his former village and would have no reasons to do so. The Authority found that it would be reasonable for the applicant and his family to remain in Kabul to avoid any chance or risk of harm in visiting their former home area, which the Authority accepted had been impacted by insurgency and general insecurity.

23. The Authority referred to the prospect of discrimination in Kabul and was satisfied the risk would be low level and that there is no real chance the applicant would be prevented from finding work, accommodation or access to medical treatment on return to Kabul. The Authority did not accept that any discrimination the applicant may experience on return to Kabul would constitute significant harm.

24. The Authority referred to having found that there is no real chance of the applicant facing serious harm in generalised and insurgent violence within Kabul. The Authority identified for the same reasons the Authority was not satisfied there is a real risk of the applicant facing significant harm in the context of generalised and insurgent violence in the country. The Authority referred to the proposition that whilst not necessary to conclude upon the earlier findings, in terms of generalised and insurgent violence, taking into account the applicant’s lack of adverse profile, the Authority was satisfied that the risks faced by the applicant in that regard are faced by all citizens in Afghanistan.

25. Accordingly, the Authority was satisfied that the risks are faced by the population of the country generally and are not faced by the applicant personally, such as falling within s 36(2B)(c) of the Act, so that there would not be taken to be a real risk that the applicant would suffer significant harm in Afghanistan for these reasons.

26. The Authority found that there were not substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The Court granted leave to the applicant to rely upon an amended ground 3 as identified in the applicant’s written submissions which is as follows:

   3. The reviewer committed an error of law in failing to consider section 36(2B)(b) and whether it applied to the Applicant. Specifically, the reviewer failed to ask if the Applicant obtain, from an authority of Afghanistan, such protection that there would not be a real risk that the Applicant would suffer significant harm, as defined in section 36(2A).

2. The Court dispensed with the need for the filing of an amended application. Mr Carr of counsel of behalf of the applicant, confirmed it was only ground 3 in its amended form that was now pressed.

3. In substance, Mr Carr referred to the difference between the concepts of significant harm and serious harm. Mr Carr referred to the requirements of s 36(2B) of the Act. Mr Carr drew attention to the finding in relation to s 36(2B)(c) of the Act as well as drawing attention to the findings that were made by the Authority in relation to the applicant’s claims. Mr Carr submitted that it was necessary for there to be an express consideration of the requirements of s 36(2B)(b) of the Act by the Authority in the circumstances of the present case and that the failure to do so meant that the Authority had not correctly applied the relevant law in determining whether the applicant met the criteria for complementary protection in respect of significant harm.

4. Mr Carr submitted that it was necessary for the Authority to consider expressly the requirements of s 36(2B)(b) of the Act and that the Authority did not do so and that the failure to identify any express reference to the same supported the proposition that the Authority had not considered that provision. Mr Carr also referred to the findings that were made addressing s 36(2B)(c) of the Act and took issue with the Authority relying, in respect of complementary protection, on the entirety of the earlier findings made in the refugee assessment. Mr Carr submitted the Authority had conflated its findings and failed to properly consider the questions required under s 36(2B) of the Act and accordingly engaged in jurisdictional error.

5. The Authority’s reasons are not to be read with a keen eye for error. On a fair reading of the Authority’s reasons as a whole, there was no basis to find that the Authority failed to take into account the whole of s 36(2B) of the Act. This is not a case where there is a finding made by the Authority that made it necessary for the Authority to make an express finding under s 36(2B)(b) of the Act. The Court does not accept the submission that the Authority must make express reference in its reasons to all limbs of s 36(2B) of the Act unless in particular circumstances they are matters arising from the particular issues and findings made by the Authority. In the circumstances of the present case, there was no finding of a kind that gave rise to the need for the Authority to expressly refer to the requirements of s 36(2B)(b) of the Act. No jurisdictional error as alleged in ground 3 is made out.

6. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2019