AUK15 v Minister for Immigration and Anor
[2017] FCCA 1872
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1872 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend originating application seeking declaratory and injunctive relief in relation to a future decision by the Minister to remove the applicant under s.198 of the Migration Act 1958 (Cth) – leave granted to amend application. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 195A, 198, 430, 501 Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 AUK15 v Minister for Immigration & Border Protection [2015] FCA 938 AUK15 v Minister for Immigration & Border Protection [2016] HCATrans 36 Other materials: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984 (entered into force 26 June 1987) | ||
| Applicant: | AUK15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MICHAEL J. HUTCHINSON, WA IMA & ONSHORE PROTECTION DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 185 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 31 May 2017 |
| Date of Last Submission: | 31 May 2017 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D V Blades |
| Solicitors for the Applicant: | Craig McKie Lawyer Pty Ltd |
| Counsel for the Respondents: | Mr P R Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY AND PERTH |
PEG 185 of 2016
| AUK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MICHAEL J. HUTCHINSON, WA IMA & ONSHORE PROTECTION DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan who entered Australia by boat on 11 August 2011. The applicant seeks the issue of constitutional writs in relation to a determination that he was not owed protection obligations by Australia.
The following summary of the background to these proceedings is taken largely from the applicant’s written submissions.
Background
On 22 October 2011, while in Immigration detention in Western Australia, the applicant was involved in an incident which resulted in an allegation against him of sexual assault. The applicant was subsequently prosecuted for this offence in the Magistrates Court of Western Australia.
On 30 November 2011, the applicant lodged a request for a Protection Obligations Determination (POD). He made the following claims in support of that request:
·He was of Hazara ethnicity and of the Shia Muslim religion.
·His father was killed by the Taliban when he was 12 years old.
·Fearing the Taliban, the applicant’s mother moved the remaining family members to Pakistan, where they faced further violence on the basis of their Hazara ethnicity.
·He did not have a support network in Afghanistan.
·There is no government in Afghanistan, and the leaders there would not be able to protect him.
·Given that he had lived in Pakistan for so long, his accent, clothing and culture would make him stand out among other Hazara people if he were to return to Afghanistan. He would be treated like a foreigner and would find it difficult to find work.
On 4 December 2011, the applicant attended an evaluation interview with the office of the first respondent’s Department (POD Officer) in respect of his protection claims.
On 26 April 2012, the POD Officer made a determination that the applicant met the definition of refugee within the meaning of the Refugees Convention[1] (Convention) and relevant provisions of the Migration Act1958 (Cth) (Act) and accordingly was someone to whom Australia owed protection obligations. The POD Officer was satisfied that the essential reasons for the applicant’s fear of harm were race and religion and stated:
I consider if the claimant returned to his home province of Uruzgan, there is a definite, real chance he could become the victim of persecution on account of his Hazara ethnicity and his Shi’a religion. The fact that he would be identified as having lived in another country for a substantial period of time would compound the risk.
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
On 7 September 2012, the applicant was convicted in the Magistrates Court of Western Australia of the offence of indecent assault and was fined $5,000. That fine was reduced on appeal to $2,000.
On 10 May 2013, the then Minister for Immigration and Citizenship exercised his non-compellable power under s.46A(2) of the Act to allow the applicant to apply for a protection visa.
On 14 May 2013, the applicant applied for a protection visa with the assistance of a migration agent.
On 18 June 2013, an officer of the Department issued to the applicant a notice of intention to consider refusal of his visa application under s.501(1) of the Act and invited the applicant to comment upon that intention.
On 29 August 2013, the then Minister made a decision to refuse to grant the applicant a visa under s.501(1) of the Act on the basis that the applicant did not pass the character test under sub-s.501(6)(aa) because of his conviction for an offence that was committed while he was in immigration detention.
On 20 December 2013, the Assistant Secretary, Complex Cases and Portal Support Branch, authorised a submission to the then Minister regarding possible Ministerial consideration under s.195A of the Act for the grant of a Removal Pending Bridging (subclass 070) visa. Under s.195A of the Act, if the Minister thinks that it is in the public interest to do so, the Minister may grant a person in immigration detention such a visa.
On 28 February 2014, the then Minister declined to consider intervention under s.195A and asked: “At what point can [the applicant’s] refugee status be reassessed?”
By letter dated 12 March 2014, the Secretary of the first respondent’s Department notified the applicant that the Department had inadvertently allowed potential unlawful access to his personal information.
By letter dated 7 April 2014, the second respondent, being an officer of the Department of Immigration, notified the applicant that the Department had commenced an International Treaties Obligations Assessment (ITOA), in order to assess whether the circumstances of his case engaged Australia’s non-refoulement obligations.
By letter dated 22 April 2014, the second respondent notified the applicant that the Department was considering potentially adverse country information and invited the applicant to comment upon that information.
By letter dated 24 April 2014, the second respondent notified the applicant that the Department was considering further potentially adverse information relevant to his case and invited the applicant to comment upon that information. This information concerned the applicant’s stated place of birth in Afghanistan.
On 26 May 2014, the applicant’s migration agents provided a lengthy submission to the Department in support of the applicant’s claims and the ITOA. The agent sent the Department a further submission on 13 August 2014.
By letter dated 13 August 2014, the second respondent invited the applicant to provide information regarding the unauthorised access to personal information. There was no response to that letter.
On 11 September 2014, the second respondent completed the ITOA process.
The second respondent found that the applicant was not a refugee within the meaning of the Convention and that Australia did not owe the applicant non-refoulement obligations. Further, the second respondent found that Australia did not owe the applicant non-refoulement obligations under the Convention Against Torture[2] and the International Covenant on Civil and Political Rights[3]. The applicant was notified of this outcome by letter dated 15 September 2014.
[2] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984 (entered into force 26 June 1987).
[3] Opened for signature 16 December 1966 (entered into force 23 March 1976).
On 19 May 2015, the applicant made an application to the Federal Court of Australia for an extension of time within which to bring proceedings for judicial review of the Minister’s decision to refuse to grant him a protection visa on character grounds. That application was dismissed on 28 August 2015: AUK15 v Minister for Immigration & Border Protection [2015] FCA 938. A challenge to that decision was rejected by the High Court on 15 February 2016: AUK15 v Minister for Immigration & Border Protection [2016] HCATrans 36.
The applicant now seeks judicial review arising out of the ITOA determination. Initially there was a contention by the Minister that this Court had no jurisdiction because of the nature of the “decision” impugned by the applicant, and the nature of the relief sought. However, the Minister accepted that this Court would have jurisdiction if, there were an amendment to the application so that declaratory and injunctive relief was sought in relation to a future decision by the Minister to remove the applicant from Australia pursuant to s.198 of the Act. In light of that concession, leave was granted to the applicant to further amend his application.
The applicant amended his application in accordance with the leave granted and sought, amongst other things:
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision concerning whether or not the applicant is to be removed from Australia under s 198(6) of the Migration Act 1958 or taking the other action the subject of the proceedings.
In light of that amendment, I am satisfied that this Court has jurisdiction to determine the matter the subject of the proceedings.
Consideration
First ground: failure to consider claim based on foreign accent
There are four grounds in the application. The first ground is:
The Second Respondent made a jurisdictional error by failing to consider and make findings on the applicant's claim that his accent developed as a result of living in Pakistan would put him at risk of persecution within the meaning of the Convention and at risk of significant harm within the meaning of the complementary protection provisions of the Migration Act 1958 (CB78, 223).
There is no question that the applicant claimed that his accent had changed because he had left Afghanistan when he was 12 and that he relied on that as a basis for his claim to fear harm on return to Afghanistan. There is also no question that the second respondent did not expressly deal with the applicant’s accent in his statement of reasons. However, that does not mean that the second respondent failed to deal with the claim.
It is well-established that a particular claim need not be expressly addressed if it is dealt with in findings at a greater level of generality: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [91] (McHugh, Gummow and Hayne JJ); Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47]. The issue must be resolved by first examining the claims made and then the relevant findings made by the second respondent.
In his statutory declaration made in support of a POD, the applicant stated:
Also, given that I have lived in Pakistan for so long, my accent, clothing and culture will make me stand out amongst the other Hazara people. I will be treated like a foreigner and will find it difficult to find work.
In essence, the claim as made at this stage, was that the applicant would be identified as a foreigner. The claim was made on a similar basis in an interview with the POD Officer.
The applicant also raised this claim in his submissions to the second respondent:
We further submit that the applicant can be considered a member of a particular social group, namely as an individual who has lived outside his country for many years. The Applicant has resided for a prolonged period in Pakistan. Given the applicant has resided in Pakistan, his accent has changed and therefore it would be evident that he has lived abroad. This would make the Pashtuns and Taliban suspicious of the applicant and subject him to harm. We note country information included below which indicates that individuals who have lived outside Afghanistan for many years are vulnerable to harm.
This submission reveals that the fact that the applicant had a different accent, was relied on to support the claim that the applicant would be identified in Afghanistan, as someone who had lived outside of that country for a considerable period and would be harmed for that reason. The applicant also relied on country information to support the connection between having lived overseas and being targeted for harm on return to Afghanistan.
The second respondent expressly dealt with the claim based on the fact that the applicant had lived outside of Afghanistan for a prolonged period. He identified that claim[4], noted information from the UNHCR[5] about people who have lived outside Afghanistan returning to their home country[6] and made a finding rejecting it[7]:
I am satisfied that there is not a real chance of the claimant facing serious harm on the basis of his being: a returnee from a Western country/asylum seeker or an individual who has resided outside his country for prolonged periods or an Afghan returnee from Iran and Pakistan. I am also not satisfied that the claimant faces a real chance of facing serious harm on the basis of his being a member of any combination of the above three groups of persons.
[4] See Court book, p.293.
[5] The Office of the United Nations High Commissioner for Refugees.
[6] See Court book, p.301.
[7] See Court book p.302.
This finding dealt with the claim concerning the applicant’s accent. That claim was only one reason for which the applicant would be identified as having lived outside Afghanistan for an extended period. The second respondent did not need to deal expressly with the reason for which the applicant might be identified.
This ground is rejected.
Second ground
This ground is:
The Second Respondent made a jurisdictional error by failing to properly determine the applicant’s claim that he would be at risk of persecution within the meaning of the Convention and at risk of significant harm within the meaning of the complementary protection provisions of the Migration Act 1958 by reason of the withdrawal of Western forces from Afghanistan (CB 23, 218, 246).
Particulars
(i) The Second Respondent stated that he was “not satisfied that the situation in Afghanistan will dramatically deteriorate in the reasonably foreseeable future encompassing the next two or three years, including the bulk of ISAF forces”. (CB 301)
(ii) In reaching the above conclusion, the Second Respondent did not refer to or consider any country information regarding the issue of the deterioration of the situation in Afghanistan following the withdrawal of Western forces.
(Emphasis in original)
Framed in that way, the ground must fail for two reasons. First, because it is based in what is contained in the second respondent’s statement of reasons. Unlike decision makers such as the Administrative Appeals Tribunal, the second respondent was under no obligation to give reasons for his assessment and, in particular, was under no obligation to refer to the evidence or other material on which he based his material findings of fact: cf. sub-s.430(1)(d) of the Act.
The second reason is that the second respondent plainly considered country information regarding the deterioration of the situation in Afghanistan following the withdrawal of Western forces. It referred to two submissions by the applicant that contained such information and stated that they had been “duly considered”. Further, it specifically referred to information concerning the security situation in Afghanistan in an area that had been “fully transitioned to ANA control”, that is, where there were no longer any foreign forces in control.
However, in his written submissions, the applicant appears to have made two different arguments: first, although it is not entirely clear whether this argument was made, he appears to argue that the second respondent failed to consider the possibility that the circumstances in Afghanistan would deteriorate once foreign forces departed. This appearance is given by the applicant’s reference in his submissions to the decision in MZZXD v Minister for Immigration and Border Protection [2015] FCCA 104 which considered an argument to that effect. However, the applicant’s submissions do not take the next step and say that that was the error made here.
On the assumption that the argument was made, it is rejected. The second respondent clearly considered the possibility of deterioration in the circumstances in Afghanistan. Indeed, it is the second respondent’s finding to that effect that forms the basis of the second argument in the submissions.
In his submission to the second respondent, the applicant stated:
… the upcoming removal of foreign forces from Afghanistan will mean that ethnic and religious minorities for example, Hazara Shias, will continue to be subjected to atrocities and not afforded state protection.
Earlier, the applicant had said:
I’m scared of Taliban, … It is the Americans, when they can, they take care of security, the time will come when they leave, the violence and killing will resume again.
The second respondent wrote this in his reasons:
I am not satisfied the situation in Afghanistan will dramatically deteriorate in the reasonably foreseeable future encompassing the next two or three years, including the exit of the bulk of the ISAF forces.
(Emphasis in original)
The applicant did not take issue with the emphasised word in that finding.
The applicant’s second argument was that the second respondent’s finding about the potential deterioration in circumstances in Afghanistan, was not only a critical step in his ultimate conclusion, but was also not supported by any evidence.
It is important to note that the applicant claimed that the situation would deteriorate in the absence of the foreign forces. The second respondent considered that claim, had regard to a wide range of country information concerning Afghanistan including the material relied on by the applicant, but was not satisfied of the claim. There is no error evident in that approach. The applicant does not contend that the material before the second respondent went all one way. The consequence is that it was open to the second respondent on the material, not to be satisfied that the facts asserted by the applicant would come to pass.
For those reasons, the second ground is rejected.
Third ground – failure to consider claim of no support network
The third ground in the application is as follows:
The Second Respondent made a jurisdictional error by failing to consider and make a finding on the applicant's claim that he would be at risk of persecution within the meaning of the Convention and at risk of significant harm within the meaning of the complementary protection provisions of the Migration Act 1958 by reason of being “basically a foreigner to the country and has no support network which suggests he would be extremely vulnerable to harm” (CB 218: see also CB 246).
In his statutory declaration given to the Department the applicant said:
I do not have any family or friends anywhere in Afghanistan and it would be too dangerous for me to be by myself with no support.
The POD Officer recorded that the applicant’s agent had made an oral submission to the effect that, the fact that the applicant had no family or friends in Afghanistan meant that he could not access community support which was an important factor in order to subsist.
In submissions to the second respondent, the applicant’s agent stated:
In addition, we refer to our submission below with respect to the viability of relocation. Particularly, we wish to note the applicant is basically a foreigner to the country and has no support network which suggests that he would be extremely vulnerable to harm.
The reference in that passage to the “submission below” is to the part of the submission set out under the heading “Persecution in Kabul and viability of relocation”. There, the submission refers to a part of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan referring to “IFA/IRA”[8] (Guidelines). The part of the Guidelines set out in the submissions suggests that, in order to assess the reasonableness of any relocation within Afghanistan, it is necessary to consider the availability of traditional support mechanisms provided by members of the applicant’s extended family or members of his or her ethnic group.
[8] UNHCR Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees.
The submission then sets out further information before making the following point:
Taking into consideration the above information and the applicant’s personal circumstances, we submit that relocation is neither relevant nor reasonable in the current situation. In particular, we note that the applicant has no family support network in Kabul. Without a family support network the applicant would find it difficult to obtain employment and shelter.
…
The evidence shows that the claim concerning the applicant’s lack of family and friends in Afghanistan changed over time. At first, it was a general claim relating to Afghanistan as a whole. However, by the time the claim was made to the second respondent, it had been refined so that it only related to relocation. It is apparent that the claim in this form was based on the Guidelines which raised the availability of a support network in the context of relocation. In light of the way in which the claim was ultimately put forward, it could no longer be said that the second respondent was under any obligation to consider the earlier, broader claim. It did not consider that broader claim. However, his reasons did not turn on the question of relocation. For that reason, it was unnecessary for him to consider the remaining claim based on the lack of family and friends.
In his submissions to the Court concerning this ground, the applicant made a point about the way in which the second respondent dealt with the claim that the applicant feared harm as an individual who had lived outside Afghanistan. The applicant noted that the second respondent had dealt with it on the basis of the Convention reason of “political opinion” rather than “as a member of a particular social group”. That complaint does not establish any error. What is important, is that the second respondent was not satisfied that the applicant was at risk of persecution or significant harm on the basis of being a person who had resided outside of Afghanistan for a prolonged period. Regardless of the description given to it, that finding dealt with the claim.
Fourth ground – targeting of applicant’s father by the Taliban
This ground is expressed in the application as follows:
The Second Respondent denied the applicant procedural fairness by making a decision adverse to the applicant without inviting comment from the applicant on a finding critical to the Second Respondent’s decision, namely that the applicant’s father had not been targeted by the Taliban, and by failing to consider relevant country information.
This ground arises from the following passage in the second respondent’s reasons:
It cannot be verified that the claimant’s father was shot deliberately, was an innocent victim of a poorly targeted attack or was simply a victim of mistaken identity. There can be no definite ascription of the deed to the Taliban, to factional infighting by Hizb-e Wahdat, to a private grievance or to outright banditry. I am not satisfied that that the claimant’s father was specifically targeted by the Taliban nor that his death was because he was a successful trader. Whilst I recognise that this remains a possibility, I find there is not sufficient evidence to satisfy me that the Taliban killed the father and for the reason claimed.
I also note that the death of the claimant’s father occurred about 16 years ago and the perpetrators would not appear to have any means of connecting this incident to the claimant, nor has any rationale for them to do so been proposed.
The applicant argues that the second respondent ought to have informed him of the possibility that he might not be satisfied that the applicant’s father was specifically targeted by the Taliban; and that his failure to do so, was a denial of procedural fairness.
It appears that part of the basis for this argument is that the POD Officer accepted that the applicant’s father had been killed by the Taliban. However, the assessment by that officer had no direct bearing upon any obligation on the second respondent. The circumstances of the processes involved in this case, are not such that the starting place for determining where the decision maker has afforded procedural fairness are the reasons of any prior decision maker: cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL).
Ordinarily, a decision maker is not required to disclose its thought processes in order to afford procedural fairness. As Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 295 at 369, in a passage cited in SZBEL:
[t]he rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision…
The second respondent’s conclusions concerning the death of the applicant’s father were not at all surprising. The applicant himself gave evidence that his father was killed while away from home and that neither he, nor his mother, had witnessed the attack. Further, the applicant stated that his mother did not like to talk about the matter. In those circumstances, there was no denial of procedural fairness in the second respondent’s failure to put the applicant on notice of the possibility of his findings about the applicant’s father.
The applicant also argues that the Tribunal denied him procedural fairness by failing to consider country information. He says this information was relevant to whether or not the Taliban might have means of connecting the applicant to his father’s death. That information was particularised as follows (without alteration):
·“New generation of Taliban leaders are young and tech-savvy and aware of community structures.”
·They are becoming more sophisticated in tracking people down and do this by several methods such as bugging telephones.
·“If an Afghan were involved in some kind of incident prior to fleeing, they would most likely be on a list held by the local Taliban or other criminal group.”
·“The Taliban are very good at keeping lists of people they are targeting. Failed asylum seekers can likely be put on such a list depending on what kind of activities they were involved in before they left Afghanistan. The Taliban also monitors the families of people who have left Afghanistan to seek asylum, and if they return to Afghanistan the family will be targeted”.
·“If the Taliban knows an individual has left the area they will keep tabs on that person’s family.”
None of this information provides any support for the proposition that the Taliban would make a connection between the applicant’s father’s death and the applicant himself. The applicant was not involved in the death. The father was not at home when he was killed. The applicant’s father did not leave Afghanistan. He had already been killed when his family left for Pakistan. Further, there was no suggestion, or any submission made by, or on behalf of the applicant, that this information supported that the Taliban might make a connection between the applicant and his father’s death. Given the nature of the material, and the applicant’s submissions, there is no rational basis for the second respondent to consider that material in connection with the father’s death.
In his written submissions, the applicant raises the further argument that the second respondent denied the applicant procedural fairness by ignoring country information concerning the difficulties facing a person returning to a rural area and/or Kabul city without family ties in either place. I would not grant leave to the applicant to raise this argument.
The information referred to was:
·Those returning from Pakistan or Iran are particularly vulnerable to the main cause of disputes in Afghanistan – land or water disputes. Whether they are Hazara and their ethnicity is a factor or not, you need land. Most do not have land to return to, or cannot recognize their old plots due to the impacts of warfare. There are often no land records or the records are in bad condition.
·Assuming an individual can negotiate the complex bureaucratic links and pay the necessary bribes to access records (if they exist), taking into account the prevalence of land grabbing in Hazara areas, after all this they still need money and labour to build a home on the land. This is before questions of community acceptance are considered, or if there is a chance pursuing some kind of livelihood there (which there generally is not in Hazara areas hemmed in by the Taliban).
·Many do not have family to return to and if they do there may be issues between the family that stayed in Afghanistan and the family that went to Pakistan/Iran.
·Individuals, who relocate to Kabul city or Province with no family, work or home, may be at risk of being targeted by criminal groups.
·Returnees without a job, family or property in Kabul could not survive.
(Emphasis in original)
As I have already observed, the second respondent did not base his conclusions on a finding of relocation to Kabul or anywhere else. That means that the information concerning relocation above, in general and to Kabul in particular, had no relevance to the decision. Further, the information concerning disputes arising over land is, at its highest, speculative with little or no bearing on the applicant’s own circumstances. Accordingly, it would be futile to allow any amendment to incorporate this argument into the application.
The fourth ground is rejected.
Conclusion
The applicant has not established any error that might warrant the grant of constitutional writs or any ancillary relief. The application is dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 18 August 2017
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