API15 v Minister for Immigration

[2017] FCCA 551

FEDERAL CIRCUIT COURT OF AUSTRALIA

API15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 551

Catchwords:
MIGRATION – International Treaties Obligations Assessment – whether the use of country information gave rise to any denial of procedural fairness – assessor complied with the obligations of procedural fairness in the conduct of the assessment – the assessor did not proceed on an erroneous assumption in the conduct of the assessment – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 48B, 195A, 417, 476.

Applicant: API15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: RAUL MENDOZA, ONSHORE PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: MLG 901 of 2015

Judgment of: Judge Street

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Sydney

Delivered on: 22 March 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the Respondents’ costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 901 of 2015

API15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

RAUL MENDOZA, ONSHORE PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for declaratory and injunctive relief within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision made on 13 April 2015 by an assessor as an International Treaties Obligations Assessment (“ITOA”). This Court has jurisdiction in the present case to review the conduct undertaken by the second respondent preparatory to the making of a substantive decision about the exercise of the Minister's non‑compellable powers under ss.48B, 195A and 417 of the Act and for the purpose of assisting the Minister's consideration of the exercise of such a power.

2. The applicant is a citizen of Afghanistan. The applicant arrived at Christmas Island by boat on 24 April 2010. The applicant is of Hazara ethnicity and Shia Muslim religion. The applicant claimed to fear harm in Afghanistan as a Hazara Shia, as well as by reason of being the son of a Mullah and the son of a landowner.  The applicant claimed to fear harm of persecution from the Taliban arising from a land dispute and an encounter with the Taliban in 1996.

Refugee Status Assessment Record

1. On 11 November 2010, a refugee status assessor found the applicant did not meet the definition of refugee in the Convention. The assessor found it difficult to accept that the Taliban would seek the applicant in his home village given the period of time that had passed and the fact that the Taliban no longer control that area which was predominantly inhabited by Hazaras.  The assessor also found that the dispute with the Kuchis related to the ownership of property and therefore was not Convention related.

Independent Merits Review

1. On 26 October 2011, an independent merits review found the applicant would not have a well‑founded fear of persecution if he returned to Afghanistan and recommended that the applicant not be recognised as a person to whom Australia has protection obligations.

Effect of the introduction of the complementary protection criteria

1. In 2012, following the introduction of the complementary protection criteria, the applicant's case was assessed against the Minister's guidelines for consideration of post‑review protection claims, and was found not to meet the guidelines. The assessment was found to be affected by error and the applicant was informed in January 2014 that a reassessment of his claims against complementary protection criteria would be undertaken by an officer of the Department in an ITOA to occur in due course.

Data breach

1. In February 2014, personal information relating to the applicant was inadvertently briefly made available on the internet by the Department.  By letter dated 13 March 2014, the Secretary of the Department wrote to the applicant in relation to the data breach. The letter outlined the nature of the information that had been made accessible and stated:-

   the department will assess any implications for you personally as part of its normal process.

2. The applicant was also informed that the applicant could raise concerns during that process. 

3. By letter dated 3 December 2012, the applicant was informed the Department would no longer be relying on the 2012 Post Review Protection Plans assessment and that it would undertake a re-assessment of the applicant’s protection claims as part of an ITOA.  The applicant was also invited to provide information about his concerns regarding the impact of the unauthorised access to his personal information for consideration in the ITOA. The applicant made submissions in response to the letter notifying him of the ITOA on 21 December 2014 and attended an interview accompanied by his migration agent on 22 January 2015. The issue of the impact of the data breach was raised in the course of that interview and the applicant was given an opportunity to explain his concerns in that regard. That interview also identified a clear issue being raised in relation to the credit of the applicant, given the passing of time that had occurred.

ITOA reassessment

1. The assessor identified in the introduction the nature of the assessment being undertaken in order to determine whether Australia had protection obligations to the applicant. The assessor identified the applicant's migration history and background. The assessor identified the applicant's claims and evidence. The assessor identified the circumstances giving rise to the ITOA reassessment.

Protection claims/information to be assessed in the ITOA

1. The assessor referred to the applicant's reliance upon all statements, statutory declarations and oral submissions previously presented to the Department and that the applicant wished to emphasise that he had not lived in Afghanistan since 1978. The applicant wished to emphasise the particular province that he came from and that he had never lived in Kabul.

2. The applicant's submissions directly addressed whether he could relocate to Kabul and the applicant advised that he could not relocate because he would stand out among the population in Kabul as a returnee from the West. It was submitted that the relocation to Kabul would not be safe and reasonable as the claimant had not lived in Kabul, had no family or support network in Kabul and the relocation of many returnees from the West to Kabul had created a Hazara underclass in the capital.

3. It was submitted that the applicant cannot expect to receive proper and adequate treatment for his psychological condition should he return to Afghanistan. The applicant claimed that he would be unable to reasonably access adequate and appropriate treatment for his condition in Kabul or anywhere else in Afghanistan.

4. The applicant submitted that he would have difficulty in surviving economically in Afghanistan. The applicant did not have sufficient education and his father’s land which could have been a source of livelihood had been stolen.

5. The applicant also claimed to fear harm being a Hazara returning from the West, and stated that his personal details were accessed through the Department's website as a result of which the Taliban would know that he had been a failed asylum seeker. The applicant submitted that the security situation in Afghanistan continues to deteriorate and that it would be fuelled by a resurgent Taliban.

Australia’s non-refoulement obligations

1. The assessor identified the nature of Australia's non‑refoulement obligations.

Consideration of procedural fairness

1. The assessor referred to the interview that was conducted on 22 January 2015 to discuss the applicant's claims and summarised what occurred at that interview. The assessor accepted that the applicant and his father returned to Afghanistan in 1996, but were intercepted by the Taliban and subjected to forced labour. The assessor accepted that the claimant was able to escape, but his father was kept by the Taliban and nothing was heard of him since. The assessor accepted as plausible the applicant's suspicion that his father might have been killed by the Taliban. The assessor accepted that the applicant returned to Pakistan and stayed there for two years, went to Iran in 1998 and stayed in that country illegally for two years. The assessor accepted that the applicant  returned to Pakistan in 2000 and stayed in Pakistan until 2010 when he embarked on a trip to Australia. 

2. The assessor expressed doubts regarding the applicant's statement that the Taliban were after him because he was the son of a Mullah. The assessor identified the contradiction in the applicant's evidence, regarding the applicant's statement that the Taliban was after him because he was the son of a Mullah is a fabrication. The assessor was not satisfied the Taliban knew the applicant's father was a religious leader. The assessor did not accept that the applicant was targeted by the Taliban because of his being the son of a Mullah. The assessor did not accept that the applicant was personally wanted by the Taliban, and that the Taliban was actively pursuing him since he escaped from their custody.

Assessment of Refugees Convention

1. The assessor concluded that the applicant had no genuine fear of harm if he returns to Afghanistan on account of his father being a Mullah. The assessor did not accept that the applicant's claimed fear of harm at the hands of the Kuchis was harm for a Convention reason. The assessor referred to the applicant's claimed fear of harm from the Taliban and considered whether the harm feared gives rise to an imputed political opinion being pro the west and anti‑Taliban. 

2. The assessor also took into account the claimed harm in relation to adequate medical and mental health facilities, but did not consider that was harm due to a discriminatory phenomenon. The assessor found that any harm that may arise from this phenomenon or country situation had no nexus with the Refugees Convention.

3. The assessor found that the applicant's fear of being persecuted by the Taliban on account of his race was not well-founded. The assessor referred to the applicant's home district and found the applicant's fear of being persecuted on account of his Shia religion was not well-founded.

4. In the context of considering whether it was reasonable to expect the applicant to return to his home town, the assessor referred to a DFAT report identifying certain parts being left safe for the Hazara minority.  The assessor referred to information which indicated that residents of Hazara dominated districts enjoy a good security environment, freedom of movement within those areas and relatively good access to services. The assessor referred to the fact that this indicated that most ordinary residents may not need to travel to places outside the area for basic requirements.

5. The assessor referred to the fact that applicant's circumstances may be different because he has not lived in the area for 35 years, and that he does not have any close relatives in that area. The assessor found this to be plausible, given the large scale exodus of Hazaras from Afghanistan as a result of the Taliban's rule in the mid‑1990s. 

6. Following that finding, there was a reference to an article from the Freedom in the World 2015 Afghanistan, dated 20 March 2015. A quote from that report referred to the annual UNHCR report released in June which reported that 2.6 million Afghan refugees around the world, the highest number for any one country. The assessor said it could reasonably be presumed that a large proportion of these refugees are Hazaras who left Afghanistan as a result of the Taliban atrocities in the late 1990s.

7. The assessor referred to the fact that with the absence of close relatives, for the applicant to subsist he may need to travel outside the district to look for a job and earn a living. The assessor observed, as a result of the information above, travel may be risky for the applicant as security on the roads from Hazara districts to Kabul and other areas is less safe.  The assessor referred to an article on Afghanistan's security situation dated 31 January 2015 published by the European Asylum Support Office. Relevantly, the particular province and home district of the applicant was considered a volatile province where anti‑government armed insurgent groups are actively operating in various districts and frequently carry out insurgency activities. 

8. The assessor referred to other country information and found the chance of the applicant encountering the Taliban and being recognised as Hazara in the applicant’s home area is far from remote. The assessor found the chance of the applicant being harmed in a persecutory manner cannot be dismissed as insubstantial, but must be considered as real.  It was in those circumstances that the assessor then turned to the issue of relocation.

Consideration of relocation

1. The assessor turned to consider whether the relocation was reasonable, being one where the individual can expect to benefit from meaningful support from his or his own family, community or tribe in the area of the prospective relocation. The assessor found the applicant's initial destination would to be returned to Kabul, and turned to consider whether it would be safe for the applicant to travel to Kabul from anywhere else in Afghanistan.  The assessor then turned to determine whether Kabul is a reasonable place for the applicant to relocate.  For reasons given, the assessor found that relocation to Kabul by the applicant was reasonable. 

2. The assessor then referred to the data breach and the personal details of the applicant that were disclosed on the website.  The assessor referred to the inadvertent disclosure of the applicant's personal details, which may result in his detention being made known by some persons in Afghanistan.  The assessor doubted that the Taliban would have seen the information on the internet.

3. The assessor referred to the prospect of the Taliban assuming that the applicant was a failed asylum seeker. It was in that context that the assessor said that there was no indication of persons who sought asylum in a western country and returned to Afghanistan being persecuted by the Taliban or any other group or authority in Afghanistan.

4. The assessor noted that it had been found that the applicant had no profile with the Taliban. The assessor found that even if the Taliban knew the applicant sought asylum in Australia, there is no indication that the Taliban would actively pursue him as a consequence of that. It was in these circumstances that the assessor found the applicant's fear of persecution by the Taliban due to the data breach was not well founded.

5. The assessor found that the applicant does not have a well‑founded fear of being persecuted should he be returned to Afghanistan in the reasonably foreseeable future. The assessor found that the applicant does not have a real chance of being persecuted for a Refugees Convention reason. The assessor found that the applicant's fear of persecution as defined under the Refugees Convention was not well founded. The assessor found that the applicant was not a refugee within the meaning of the Convention.

Assessment of non-refoulement obligations

1. The assessor considered whether there is a real risk that the applicant would suffer significant harm, should he be returned to Afghanistan. The assessor was not satisfied that the applicant is at real risk of being subject to significant harm, should he be returned to Afghanistan. The assessor found that the applicant was not a person in respect of whom Australia has non‑refoulement obligations. The assessor found that the applicant did not meet the criteria under complementary protection under s.36(2)(aa) and s.36(2A) of the Act.

Before this Court

1. The grounds of the amended application are as follows:- 

   1. The Assessor erred by not affording the applicant procedural fairness

   a. The assessor had access to the disclosed information but did not disclose the information to the applicant [CB97-991] for verification and comment;

   c. The Assessor erred by relying on material that post-dates the interview of 22 January 2015:

   i. “Freedom in the World 2015 - Afghanistan",  Freedom House, 20 march 2015, CXBD6AODE3927; and

   ii. “Afghanistan Security Situation: EASP Country of Origin Information Report,” European Asylum Support Office, 31 January 2015, CISEC96CF 1191.

   3. The Assessor denied the applicant procedural fairness by failing to warn him that it would not apply the assumption that all of the appellant's personal information had been accessed by all the persons or entities from whom she feared persecution or other relevant harm as held by the High court of Australia in Minister for Immigration and Border Protection v SZSSJ; Minister for immigration and Border Protection v SZTZI [2016] HCA 29 in [91].

   Particulars

   a. At [CB 180] the Assessor applied the wrong assumption as follows:

   it is possible that certain person who accessed the department's website may have concluded that the claimant has sought asylum in Australia. While this may be the case, I find it very unlikely that the Taliban would have seen this information through the internet… the Taliban is not known to be constantly monitoring the Department’s website as they may not have an operational reason to do so.

2. Mr Bodisco of counsel confirmed that Ground 2 was abandoned.  I note that Mr Bodisco was correct not to press Ground 2 in that it was doomed to failure. 

Consideration

1. In relation to Ground 1, Mr Bodisco sought to argue that the applicant had lost the opportunity to put submissions to the assessor or be heard by the assessor in respect of the country information that effectively post‑dated the interview. That country information was used by the assessor to make findings favourable to the applicant. The information was not used to make adverse findings. Further, the information was country information to which the assessor was entitled to have regard.

2. Mr Bodisco of counsel sought to argue that the information might have been used in consideration of the second limb in relation to the applicant's fear of persecution, and whether it was reasonable to relocate to Kabul. The possibility of using country information of the kind referred to in that way does not give rise to any denial of procedural fairness in the conduct of the review by the assessor.

3. On the material before the Court, the applicant had an opportunity to identify his claims and put submissions at the interview and had a further opportunity to put further submissions in relation to the data breach, which the applicant did.

4. I do not accept that the assessor was under any obligation to provide the country information referred to in footnotes 26 and 28 of the ITOA’s reasons. On the material before the Court, the assessor complied with the obligations of procedural fairness in the conduct of the assessment.  No jurisdictional error is made out by Ground 1.

5. In relation to Ground 3, Mr Bodisco of counsel suggested that the assessor's reasoning in relation to the Taliban in respect of the data breach was in substance contrary to the assumption that the assessor had foreshadowed making favourable to the applicant.  The assessor's reasons are not to be read with a keen eye for error.  On a fair reading, the assessor was identifying an obvious fact that was open to the assessor to make findings on. However, it is apparent on a fair reading of the assessor's reasons that the assessor considered the consequences of the Taliban being aware that the applicant had sought asylum in Australia.

1. There was no denial of procedural fairness as alleged in Ground 3. The assessor did not proceed on an erroneous assumption in the conduct of the assessment. No jurisdictional error is made out by Ground 3. 

Conclusion

1. The amended application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 April 2017