AXE16 v Minister for Immigration
[2017] FCCA 2459
•11 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2459 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority applied the incorrect test – whether the Authority breached s.473EA of the Act – whether the Authority denied the applicant procedural fairness – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 473DE, 473EA, 476 |
| Applicant: | AXE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS AUTHORITY |
| File Number: | SYG 922 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 11 October 2017 |
| Date of Last Submission: | 11 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 922 of 2016
| AXE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 made on 15 February 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Afghanistan and a Shia Hazara and was born in a particular location in the Jaghori District in the Ghanzi province.
The applicant arrived in Australia on Christmas Island on 22 October 2012. On 29 July 2015, the applicant lodged an application for a Subclass 790 Safe Haven Enterprise Visa. In summary, the applicant feared harm by reason of being a Shia Hazara in Afghanistan and being likely to be discriminated against and tortured, or killed and by reason of having been a teacher and proposed principal at a girls’ school in Afghanistan.
On 11 January 2016, the delegate refused to grant the applicant the Safe Haven Enterprise Visa and found that the applicant failed to meet the criteria under the Act.
The Authority’s Decision
On 22 January 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority, in that letter, identified that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and to provide new information.
Information before the Authority
Pursuant to that invitation, submissions were provided to the Authority on 12 February 2016, which were expressly considered and addressed in the Authority’s reasons. In the Authority’s reasons, delivered on 15 February 2016, the Authority identified the background to the visa application. The Authority identified having regard to the material referred under s.473CB of the Act.
The Authority identified taking into account new country information. That new information was of a kind falling within s.473DE(3)(a). The Authority identified the submissions in its reasons and had regard to the submissions. The Authority also identified reference to a particular publication being an updated “Protection Assessment Guidance Note Number 5 - Afghanistan” and was satisfied that in the circumstances of the present case that the information could not have been provided and that there were exceptional circumstances considering that new information and had regard to the same.
The Authority identified the submissions referred to other sources addressing the situation in Afghanistan and was not satisfied that that information could not have been provided before the delegate’s decision, and it was not satisfied it was credible information, and it was not satisfied that it falls within s.473DD(b)(i) and s.473DD(b)(ii) and did not have regard to that information.
Factual findings
The Authority summarised the applicant’s claims and evidence. The Authority was satisfied that in 2012, the applicant was employed at a girls’ high school and that he was a candidate for the position of principal. The Authority accepted that Qarabagh Taliban insurgents stopped the applicant in Qarabagh in 2012 and that they were searching for him on the Qarabagh roads at that time. The Authority also accepted that the applicant had, prior to this, received telephone calls in which his life was threatened because he was involved in female education.
Refugee assessment
The Authority identified the relevant law in relation to whether the applicant was a refugee as well as in relation to complementary protection. The Authority accepted that the applicant faces a real chance of being killed by the Taliban in the area where he was stopped and in his home area in the Jaghori District. The Authority took into account s.5J that the real chance of persecution must relate to all areas of the receiving country.
Taking into account the circumstances of the applicant and the available country information, the Authority concluded that the applicant would not face a real chance of persecution in the Afghan city of Kabul for reason of involvement in female education and/or for reason of his being a Shia Hazara and/or for reason of his being a returnee from Australia.
The Authority made reference to the Hazara constituting the largest ethnic group in Kabul. The Authority also made reference to the DFAT report of 8 February 2016. The Authority made reference to being mindful of the situation in Ghazni and Zabul remains fluid. Nevertheless, the Authority found that abductions and/or executions of Hazaras are not occurring in Kabul. The Authority was not satisfied the applicant faced a real chance of such harm now, or in the reasonably foreseeable future.
The Authority was not satisfied that there is a real chance the applicant would be killed, or otherwise harmed in Kabul in a bomb attack or some other form of violence as a consequence of being a Shia Hazara now or in the reasonably foreseeable future. The Authority made reference to the Hazaras historically suffering discrimination in Afghanistan. The Authority observed that the country information does not indicate that Shia Hazaras are subject to harassment, or discrimination amounting to persecution in Kabul.
The Authority found that there is no information to indicate the Shia Hazaras have no access to basic services, or to earn a livelihood.
The Authority made reference to reporting indicating that schools, including schools for girls, are operating in Kabul. The Authority found there is no information to indicate that any teaching staff, or students in Kabul had been harmed in any way in the recent decade by the Taliban-led insurgency or Al Qaeda.
The Authority made reference to accepting that the applicant has been directly threatened by the Qarabagh Taliban in the past and that they actively searched for him when he was travelling through the Qarabagh District. The Authority however, found that there is no evidence to indicate that the Taliban, or Al Qaeda, have pursued, or killed, or otherwise harmed any teaching staff in Kabul.
The Authority made reference to the targeting of persons for assassinations in Kabul and found that the applicant does not have a high profile like targets of that kind and found that credible sources report the Taliban does not pursue and target low-profile persons of interest who flee to Kabul. It was in these circumstances the Authority found it was not satisfied that if the applicant returns to Kabul, he would face a real chance of being killed, or otherwise harmed by the Taliban, Al Qaeda, or any other insurgent group for reason of his past involvement in female education now, or in the reasonably foreseeable future.
The Authority was not satisfied the applicant would face a real chance of persecution as a Shia Hazara teacher if he resumed employment in the female education in Kabul. The Authority found there is no evidence that Shia Hazara returnees from western countries have been harmed by insurgents like the Taliban, Al Qaeda, or Daesh in Kabul. The Authority found that it was not satisfied, on the weight of the evidence, that the applicant, as an adult male, faces a real chance of harm in Kabul on the basis of being targeted for robbery, or on the basis of wealth now, or in the reasonably foreseeable future.
The Authority made reference to considering the combination of factors involving the applicant’s past and future involvement in female education, and the applicant being a Shia Hazara and being a returnee from a western country in considering whether the applicant faced a real chance of suffering harm in Kabul. Having considered the available information cumulatively, the Authority was not satisfied that if the applicant returned to Kabul, the applicant would face a real chance of persecution.
The Authority concluded that the applicant did not meet the definition of “refugee” in s.5H(1) and did not meet the criteria under s.36(2)(a) of the Act.
Complementary protection assessment
The Authority turned to whether the applicant met the criteria for complementary protection. The Authority made reference to “real chance” and “real risk” involving the same standard and found that the applicant’s past and/or future involvement in female education and/or being a Shia Hazara and/or being a returnee from Australia do not give rise to a real risk of significant harm in Kabul.
The Authority was satisfied that it was reasonable for the applicant to relocate to Kabul. The Authority considered the applicant’s personal circumstances in this regard and identified the applicant as being a single able-bodied man with tertiary qualifications and professional experience having worked as a teacher. The Authority found that Kabul remains under government control and that Kabul has an active education system within which the applicant can seek employment and earn a livelihood.
It was in these circumstances the Authority found it would be reasonable for the applicant to relocate to Kabul, which the Authority found was an area of the country where there would not be a real risk that the applicant would suffer significant harm.
The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan there is a real risk the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s.36(2)(aa) of the Act.
Proceedings before this Court
Grounds in the application
The Grounds in the amended application are as follows:
1. The Authority erred in failing to provide the applicant with procedural fairness.
Particulars
a. The Authority failed to put its findings to the applicant for comment that “the applicant was a single able-bodied man. He has tertiary qualifications and professional experience working as a teacher. Kabul remains under government control and, as has been note above, Kabul has an active education system within which the applicant can seek employment and earn a livelihood. I am satisfied that it would be reasonable for the applicant to relocate to Kabul, an area of the country where there would not be a real risk that he will suffer significant harm”.
3. The Authority breached s473EA of the Act.
Particulars
a. The Authority set out extensive country information in the decision at [24] - [27] which demonstrated that as recently as February 2016 there have been violent attacks including kidnapping and murder of Shia Hazaras in Afghanistan;
b. Despite the independent country information, which the Authority accepted, the Authority concluded at [26] that because abduction and/or executions were not occurring in Kabul the applicant did not face a real chance of such harm now or in the foreseeable future;
c. The Authority made this finding without any explanation and there is no logical connection between the conclusion and the earlier findings; and
d. The Authority was breached s473EA of the Act by failing to provide adequate reasons and making an unreasonable, unjust and inappropriate decision.
4. The Authority applied the wrong test and asked itself the wrong question in respect of what constitutes 'a real chance' of harm if the applicant were to relocate to Kabul.
Particulars
a. At [26]-[27] the Authority concluded that the applicant would not face a real chance of harm in the form of abduction and/or execution in Kabul at [26] and would not be killed or otherwise harmed in Kabul by a bomb attack or some other form of violence at [27].
b. In reaching this conclusion the Authority asked itself the wrong question in that it asked whether the applicant faced a real chance of 'actual' harm rather than asking whether there was a 'real chance' of harm in accordance with the High Court decision in Chan v MIEA (1989) 169 CLR 379.
Ms Grotte of counsel on behalf of the applicant confirmed that Ground 1(b) and Ground 2 were not pressed.
Consideration
Ground 1
In relation to Ground 1, notwithstanding the reference to procedural fairness, the argument developed by Ms Grotte was that the finding of the Authority in relation to reasonableness of relocation in respect of complementary protection for the applicant was legally unreasonable.
Ms Grotte’s argument was founded on the positive findings made by the Authority in relation to the applicant’s past experiences. Ms Grotte submitted that, in the applicant’s circumstances, it was legally unreasonable for the Authority not to exercise the power under s.473DC(3) to invite the applicant orally, or in writing, to give new information in relation to the proposed finding by the Authority that in the applicant’s particular circumstances the applicant could reasonably relocate.
It is apparent from the delegate’s decision that the issue of relocation was an issue before the delegate on which the applicant had an opportunity to put submissions. The delegate expressly referred to particular UNHCR country information in relation to single able-bodied men in considering the reasonableness of relocation to Kabul.
Ms Grotte properly conceded that there was no request for the Authority to exercise its powers under s.473DC(3). I do not accept that the positive findings in the present case give rise to the position where no reasonable Authority conducting a review under Part 7AA could fail to exercise the power under s.473DC(3). The Authority provided detailed reasons in relation to the ability of the applicant to relocate to Kabul including the availability of the teaching of girls that takes place in Kabul and the country information referred to in the Authority’s reasons.
It was a relevant consideration in respect of the criteria for complementary protection to take into account the applicant’s personal circumstances and the reference to the applicant being an able-bodied male was one referred to in country information identified by the delegate. This was also a relevant matter for the Authority and optn to the Authority to so find.
This is not a case where there is made out legal unreasonableness by reason of the failure to exercise the power under s.473DC(3). No jurisdictional error as alleged in Ground 1(a) is made out.
Ground 3
In relation to a Ground 3, Ms Grotte sought to argue that the Authority had failed to provide adequate reasons as required under s.473EA in support of the findings in the last sentence in each of paragraph 26, paragraph 27, and paragraph 29.
The Authority provided logical rational reasons in support of the findings made in those paragraphs. Those findings cannot be said to lack an evident and intelligible justification and were open on the material before the Authority. There was no failure to give adequate reasons in support of the adverse findings made by the Authority. No jurisdictional error as alleged in Ground 3 is made out.
Ground 4
In relation to Ground 4, the Authority’s reasons are not to be read with a keen eye for error. The Authority correctly identified the relevant law. Ms Grotte sought to argue that the Authority did not apply the real chance test or the real risk test and had imposed a standard of “actual harm”. There was no reference to “actual harm” by the Authority, and the Authority’s reference to what has occurred in a particular location was logical and rational reasoning in support of the Authority’s adverse findings.
The Authority did not fail to apply the correct test. The Authority did not ask itself the wrong question in relation to real chance in respect of the applicant’s ability to relocate to Kabul. No jurisdictional error as alleged in Ground 4 is made out.
Conclusion
The amended application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 24 October 2017
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