Arb18 v Minister for Home Affairs
[2021] FCCA 1427
•24 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ARB18 v Minister for Home Affairs [2021] FCCA 1427
File number: ADG 62 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 24 June 2021 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse to grant a Safe Haven Enterprise Visa – whether the Authority undertook the required “fact intensive assessment” in determining it was reasonable and practicable for the applicant to internally relocate to Kabul – where the Authority found that the applicant could reasonably and practicable relocate by himself to Kabul – where the Authority found the applicant’s family would eventually join him in Kabul – where the Authority failed to consider the long term circumstances of the applicant and his family relocating to Kabul – jurisdictional error made out – costs reserved Legislation: Migration Act 1958 (Cth) ss 5H, 36 Cases cited: AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Number of paragraphs: 39 Date of hearing: 21 April 2021 Place: Darwin The Applicant: Appearing on his own behalf Counsel for the First Respondent: Mr Knowles Solicitor for the First Respondent: Australian Government Solicitor ORDERS
ADG 62 of 2018 BETWEEN: ARB18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 2 February 2018.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 20 July 2017.
3.Costs are reserved. The Applicant and First Respondent may file written submissions in relation to costs within fourteen (14) days of the date of this order.
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 2 February 2018 which affirmed a decision of a delegate of the Minister for Home Affairs (the Delegate) to refuse to grant a Safe Haven Enterprise Visa (the Visa) to the applicant.
The applicant is of Pashtun ethnicity and the Sunni faith. He is a citizen of Afghanistan. He lived in the Khost province of eastern Afghanistan. In 2012 the applicant left Afghanistan using a false passport which identified him as a citizen of Pakistan. He initially travelled to Indonesia before arriving at Christmas Island on 14 December 2012. On 13 June 2016, the applicant filed an application for the Visa on the ground that he feared harm by the Taliban. On 20 July 2017, the delegate refused to grant the applicant the Visa.
The Authority was satisfied that the applicant would face a real risk of suffering significant harm if he were to return to his home province of Khost in eastern Afghanistan. However, in affirming the decision of the delegate, the Authority found that it would be reasonable for the applicant to internally relocate within Afghanistan to Kabul to prevent the real risk of the applicant suffering significant harm in Khost.
Various decisions of the High Court of Australia and Federal Court of Australia – including SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and MZANX v Minister for Immigration and Border Protection [2017] FCA 307 – have outlined a course to be followed in reaching a state of satisfaction that it is appropriate for a person to internally relocate to another region of their home country. A decision-maker must undertake a “fact intensive assessment” in deciding the practicality and reasonableness of the internal relocation.
In the present case, the applicant was not legally represented. The application failed to identify any recognisable ground of jurisdictional error. However, the Court raised a concern as to whether the required “fact intensive assessment” was conducted by the Authority.
Background
The applicant was born in the Khost province of Afghanistan. He said he never received any formal education and is illiterate.
In 2002, at 19 years of age, the applicant began work as a rock-seller, cutting rocks and selling them on a wholesale basis to the building industry. In 2010, whilst working as a rock-seller, the applicant said that the Taliban suspected he was selling rocks to builders who were associated with the Afghanistan Government and the occupying forces. As a result, the applicant was ordered by the Taliban to cease his work as a rock-seller.
The applicant then commenced operating a grocery store and continued to do so for approximately one year. He was then approached by the Taliban and ordered that he cease trading as it was assisting the Afghanistan Government and “the infidels”. He said that the Taliban threatened him with consequences if he failed to comply with this order.
The applicant claimed that he then obtained a job in the office of the District Governor where he performed menial tasks. He said that whilst working in this role people attempted to bribe him in order to obtain a government signature on documentation and to have important documentation removed from the Governor’s office. The applicant said he declined to fulfil those demands and requested he be transferred into the kitchen to be employed as a cook.
The applicant said that when returning from work one day he was kidnapped by armed Taliban and taken to a mountain camp where he received 20 lashes. He claimed this occurred because of his association with the Afghanistan Government. He was told he must work with the Taliban and was provided with poison which he was directed to put in the Governor’s food. He said he told his father-in-law and the Governor about what had occurred. He said that subsequent to this event his mother was visited by the Taliban and questioned about his whereabouts.
Following these events the applicant decided to flee Afghanistan using a false Pakistani passport. After he fled, the applicant said the Taliban continued to visit his family and sought information about his whereabouts. He said he was also afraid that his cousins, who are ill-disposed towards him, would inform on him to the Taliban.
The applicant's claims for refugee status related to his fear of suffering harm inflicted by the Taliban. The applicant gave three primary reasons for holding this fear:
(1)he disobeyed Taliban instruction;
(2)he co-operated with the Afghanistan Government; and
(3)if he were to return to Afghanistan, he would be an asylum seeker returning from the west.
The Decision of the Authority
The Authority did not accept the applicant’s narrative in its entirety, however, it did find that generally it was a credible representation of the applicant’s circumstances living in Afghanistan.
The Authority did not accept the following assertions made by the applicant:
(1)that the Taliban continued to express an interest in him after he left Afghanistan;
(2)that his family had had multiple visits by the Taliban inquiring about him;
(3)that his cousins were in contact with the Taliban or that his cousins would inform on him to the Taliban;
(4)that the applicant had a profile which would result in him being targeted by the Taliban because of his past conduct and refusal to assist the Taliban.
The Authority did accept that the applicant's home district of Khost is a stronghold of the Taliban insurgency.
The Authority, taking into account this information, did not consider the applicant to be a refugee pursuant to the definition in section 5H(1) of the Migration Act 1958 (Cth) (the Act). Therefore the Authority could not be satisfied Australia owed the applicant protection obligations pursuant to section 36(2)(a) of the Act.
The Authority, in undertaking the complementary protection assessment, went on to consider whether Australia owed the applicant protection obligations. The Authority was required to determine, pursuant to section 36(2)(aa) of the Act, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Afghanistan, there was a real risk the applicant would suffer significant harm.
The Authority accepted that if the applicant were to return to Khost then there was “at least more than a remote chance” that the populace would identify the applicant as a person returning from a western country. The Authority was satisfied, having regard to the country information on Khost, persons returning from overseas (particularly western countries) were at risk of being violently targeted by the Taliban and other anti-government elements. The Authority concluded that the applicant, in returning to Khost, faced a real risk of significant harm within the meaning prescribed under section 36(2A) of the Act.
Having come to this conclusion the Authority then turned its consideration to section 36(2B), particularly subsection (2B)(a) which stipulates:
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; …
The Authority identified the area of Kabul in Afghanistan as a place that was the “most viable option for many people for internal relocation”.
In determining whether Kabul was a suitable place for the applicant to relocate, the Authority firstly considered whether the applicant would likely be at real risk of suffering significant harm in Kabul. It concluded, having regard to country information produced by the Australian Government Department of Foreign Affairs and Trade (DFAT), that Kabul was a place where the applicant would not face a real risk of suffering significantly harm. In reaching this conclusion the Authority took into account the applicant’s membership of the largest ethnic and religious groups in Kabul. Further, whilst the Authority generally agreed with the applicant’s submissions that there was ongoing generalised violence in Kabul it did not accept that the applicant would be personally targeted, citing its findings that the Taliban and Islamic State did not have any ongoing adverse interest in the applicant and that he was not a person with any significant political profile. The Authority also found that despite the ongoing generalised violence in Kabul the chance the applicant would be inadvertently harmed was remote.
The Authority then went on to consider whether it would be reasonable for the applicant to relocate to Kabul taking into account the applicant’s personal circumstances. The factual context upon which the Authority conducted this assessment was that the applicant would be arriving in Kabul by himself and without any dependents. In doing so it had regard to the applicant’s employability, his familiarity with the region’s language, his ethnicity and religion, and his ability to temporarily subsist in a place separate to where his family resides. The Authority also gave attention to material produced by the United Nations High Commissioner for Refugees and DFAT which described the reasonableness of relocation more generally. Taking into account all of this information the Authority was satisfied that the applicant could relocate and remain in Kabul. The Authority therefore considered that the applicant would not be at a real risk of suffering significant harm pursuant to section 36(2)(aa) of the Act.
The Authority’s findings that the applicant could relocate to Kabul underpinned its decision to affirm the decision of the Delegate to refuse to grant the Visa to the applicant.
Consideration
As previously stated, the application for judicial review filed by the applicant on 14 February 2018 failed to outline any discernible ground of jurisdictional error.
Nonetheless, during the course of the hearing, a question was raised as to whether the Authority, in conducting the complimentary protection assessment, undertook the requisite “fact intensive assessment”, as Mortimer J outlined in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (MZANX), when considering the reasonableness and practicality of the applicant’s internal relocation to Kabul. This is the single issue of contention in this matter.
Given that this was not a matter raised in the applicant’s grounds of review, I indicated to counsel for the Minister that I would be willing to grant an adjournment for this to occur or alternatively I would allow him (and the applicant) to provide written submissions after the conclusion of the hearing to supplement oral submissions. Mr Knowles indicated he did not require any further time and was prepared to make oral submissions.
In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 the plurality, in contemplating the requirements of a decision-maker in considering the reasonableness of relocation, remarked at [24]:
What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
This observation of the plurality came at a time prior to the insertion of section 36(2B) into the Act. However, in MZANX Mortimer J was required to consider the obligations under section 36(2B) of the Act. Her Honour adopted and expanded upon the plurality’s observation, particularly at [51] of her Honour’s judgment:
In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
In considering the task a reviewer can be expected to undertake in conducting inquiries into the reasonableness of internal relocation, Mortimer J, observed at [58] that the particular objections raised by an applicant are important but they are only one factor:
…it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
In the applicant’s case, the Authority observed at [64] of its reasons:
While I accept his submission that he will be unable to access financial support from the Afghan government and that it may be difficult for him to find work at first, I am satisfied that in Kabul the applicant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. I am satisfied that he would not be forced to exist below at least an adequate level of subsistence. I also note that he will be arriving in Kabul unaccompanied and without dependents in the short term and will not be encumbered by the expense of having to pay Kabul accommodation prices to house his family. I am satisfied that he will be able to earn a livelihood sufficient to sustain himself while establishing himself in Kabul.
This finding suggests that the Authority considered the applicant will be able to sustain himself in Kabul because he does not have any dependents. This conclusion is inconsistent with the findings of the Authority made earlier in its reasons which contemplated that, while the applicant would temporarily be separated from his family, they would necessarily join him at some point after his arrival in Kabul (at [63]). The Authority went on at [63] to find that his family will:
…continue to be supported by his father-in-law and he [the applicant] has not made any claims that his father-in-law will not continue this support until such time as the applicant is established and can arrange for his family to join him (emphasis added).
The reasons of the Authority do not expand on the applicant’s immediate family structure other than to conclude that he has a wife and children. However, the applicant stated, and it was not disputed, that he had a wife and six children residing in Khost.
Counsel for the Minister made submissions that the Authority adequately dealt with the issue of the applicant’s wife and children eventually joining him in Kabul. The Minister said the Authority contemplated that the applicant would temporarily be in Kabul without any dependents and that this would provide him the opportunity to financially stabilise himself to a point where his family could then join him in Kabul. The Minister submitted that this eventual stability of the applicant obviated the need for the Authority to consider the sufficiency and availability of services such as educational facilities, housing, and healthcare in the context of the applicant and his family relocating to Kabul. The Minister also pointed out that during this temporary arrangement the applicant’s father-in-law would continue to support the applicant’s family “until such time as the applicant is established and can arrange for his family to join him”.
As Mortimer J made clear in MZANX at [62]:
…What might be “reasonable” and “practicable” for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for a young man, his wife and young child.
In my view, the assessment undertaken by the Authority focused merely on the applicant’s temporary circumstances. It considered what is reasonable and practicable on the basis that the applicant would be without any dependents in Kabul. This ignored the actual background upon which the Authority was required to consider the reasonableness and practicality of the applicant relocating to Kabul in the long term where he would be accompanied by his wife and six children (at [63]). As Mortimer J said the relevant factual matters are dependent upon the circumstances of the particular individual. In my view, the Authority’s misplaced focus meant that it failed to obtain and consider a sufficiently detailed array of information about the applicant and his family relocating to Kabul.
The task for the Authority is inquisitorial in nature. The level of inquiry in a case such as the applicant’s, where he is to eventually be accompanied by his family, would, in my view, necessarily involve the contemplation of various matters in the context of the applicant and his family relocating to Kabul. For example, the employment opportunities available to the applicant which would ensure he and his family are able to sustain themselves, the adequacy of the healthcare system, the availability of appropriate housing for a family of eight people, educational facilities, and the existence of any further familial and community support in Kabul. I do not accept the Minister’s submission that the applicant temporarily living in Kabul independently would lead to a guarantee of stability sufficient to support himself and his family nor do I accept that this temporary arrangement obviates the requirement of the Authority to conduct this fact intensive assessment in the context of the applicant and his family relocating to Kabul.
The Authority’s reasons do not recount any “objection” by the applicant to the reasonableness and practicality of the applicant and his family relocating to Kabul. Counsel for the Minister, Mr Knowles properly referred the Court to the observations of the Full Court of the Federal Court in AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106 which developed on Mortimer J’s remarks in MZANX about the task of determining whether the decision-maker reached the requisite state of satisfaction, particularly at [29]:
Reliance on an “objection” as a basis for a contention of jurisdictional error may be problematic, although at a colloquial level the use of the term is understandable. An “objection” made by a visa applicant to relocation has no conceptual or statutory status in the task of determining whether the causal element of Art 1A of the Refugees Convention is satisfied. As Mortimer J noted in MZANX, matters raised by a visa applicant (whether by way of “objection” or otherwise) are likely to form part of the framework in which a decision-maker will need to assess the safety and reasonableness/practicability of a person returning to a particular part or parts of her or his country of nationality. However, as her Honour also noted in MZANX, the decision-maker’s task is not completed by ticking off a checklist of matters raised by a visa applicant. Too much focus on “objections” tends to encourage this kind of “checklist” approach, which detracts from an appreciation of the overall task of the decision-maker, and from the Court’s task on judicial review to determine whether the state of satisfaction was lawfully formed: see MZYTS at [46].
For the reasons stated above, I am satisfied the Authority failed to perform the necessary statutory task and this caused the jurisdictional error.
I note that the applicant has succeeded on a ground which he did not raise. As this is the case, I will allow the parties to make brief written submissions as to costs. This is to occur within 14 days.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 24 June 2021
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