Axe16 v Minister for Immigration and Anor (No.2)
[2020] FCCA 1761
•11 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXE16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1761 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s fears found to be genuine but not well-founded – whether the Authority erred in considering internal relocation or in relation to the non exercise of its power to get new information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473DB, 473DC, 477 |
| Cases cited: ALI18 v Minister for Immigration & Anor [2019] FCCA 2257 AXE16 v Minister for Immigration & Anor [2017] FCCA 2459 AXE16 v Minister for Immigration [2018] FCA 646 BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 BFH16 v Minister for Immigration [2020] FCAFC 54 Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 |
| Applicant: | AXE16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 922 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The further amended application relied upon on 30 June 2020 is dismissed.
The applicant be granted a certificate in respect of this new trial under s.8(1) of the Federal Proceedings (Costs) Act 1981 (Cth) stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the applicant in respect of this new trial.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 922 of 2016
| AXE16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 February 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties. The statement is brief, noting that background facts have been set out in detail in previous decisions in these proceedings.
The applicant is a citizen of Afghanistan and a Shia Hazara. He was born in a named location in Ghazni province.
On 22 October 2012 the applicant arrived on Christmas Island by boat. He was an unauthorised maritime arrival and, as such, was excluded from applying through the usual channels for a protection visa or for a SHEV[1] to enable him to remain in Australia under the refugee provisions or the complementary provisions of the Migration Act 1958 (Cth) (Migration Act).
[1] Safe Haven Enterprise Visa
On 28 May 2015 the Minister "lifted the bar" from applying, and on 7 July 2015 the applicant was invited to lodge an application for a temporary protection visa.
On 29 July 2015 the applicant lodged a subclass 790 SHEV application.
The applicant claimed that as a Shia Hazara in Afghanistan he was likely to be discriminated against and even tortured or killed. It was especially dangerous for him because he was a teacher at a girls' school in Afghanistan.
On 11 January 2016 the Minister’s Department refused the SHEV application and his file was forwarded to the Authority.
On 15 February 2016 the Authority affirmed the decision not to grant protection.
On 22 January 2016, the decision of the delegate was referred to the Authority by the Minister pursuant to s.473CA of the Migration Act.[2]
[2] Supplementary Court Book (SCB) 21-30
On 12 February 2016, the applicant’s then representative gave to the Authority some submissions in support of his case.[3]
[3] Court Book (CB) 134-141
The current proceedings
These proceedings began with a show cause application filed on 19 April 2016. The application was filed outside the time prescribed in s.477(1) of the Migration Act but on 20 July 2016, the Court granted an extension of time by consent.
The matter had originally been docketed to Judge Emmett but was heard by Judge Street. His Honour dismissed the application.[4]
[4] AXE16 v Minister for Immigration & Anor [2017] FCCA 2459
On appeal to the Federal Court, that decision was overturned and the matter was remitted to this Court for rehearing.[5]
[5] AXE16 v Minister for Immigration [2018] FCA 646
The application has been through several iterations since its original filing. At the trial before me on 30 June 2020 the applicant relied upon a further amended application which abandoned several earlier grounds and reframed a remaining ground and added a further ground. The grounds as so amended are:
3.The decision of the Authority in relation to relocation to Kabul in respect of both real chance of persecution and complementary protection was legally unreasonable.
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 and could relocate to Kabul;
c.The Authority made this finding without any logical connection between the conclusion and the earlier findings.
5.The Authority acted contrary to the principles set out in Minister for Immigration and Border Protection v CRY 16 [2017] FCAFC 2010 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 and therefore acted in a legally unreasonable manner in carrying out its statutory task of review.
Particulars
a.As a matter of legal reasonableness the Authority ought to have considered exercising its discretion under s473DC.
b.The Authority decided that it had new information and that there were exceptional circumstances that would justify it considering that new information.
c.The new information concerned the situation in Kabul and formed the basis of the findings as to relocation.
The only evidence I have before me is the book of relevant documents filed on 10 June 2016 and the supplementary book of relevant documents filed on 15 September 2017.
For the purposes of the rehearing, both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
Consideration
Ground 1 – was the Authority’s decision concerning the risk of harm facing the applicant in Kabul unreasonable?
The Authority accepted the following:
a)the applicant is a Shia Hazara who originated from a named district in Afghanistan’s Ghazni Province;[6]
b)the applicant was employed in 2012 at a girls’ high school and he was a candidate for the position of Principal;[7]
c)Taliban insurgents continue to oppose female education in many areas and the applicant’s home area was one such area where female education has been banned and girls’ schools have been closed down, and teaching staff have been threatened and killed;[8]
d)the Taliban exercise near total control over many of the local roads;[9]
e)the Taliban insurgents in the local area could have been informed of the identities and the contact details of persons involved in girls’ schools in the applicant’s home area and surrounding districts and might seek to threaten such persons;[10]
f)informants in the provincial administration might have been aware that the applicant was being considered for the position of principal;[11]
g)in June 2010 there was a reputable report that a headmaster was stopped and killed by the Taliban in the local area;[12]
h)the Taliban stopped the applicant in the local area in 2012 and they were searching for him on the local roads;
i)the applicant had previously received threatening telephone calls because he was involved in female education.[13]
[6] CB 146 [15]
[7] CB147 [16]
[8] CB147 [18]
[9] CB 147 [18]
[10] CB 147 [18]
[11] CB147 [18]
[12] CB148 [19]
[13] CB148 [20]
The Authority determined that the applicant could not return to his region of origin in Afghanistan because there was a real chance of harm such as being killed by the Taliban because of his personal profile, being a Shia Hazara who had been a teacher of girls and was once a candidate for a position of principal at a girls' school.[14]
[14] CB149 [24]
The Authority then turned its attention to the question of relocation, because the real chance of persecution must relate to all areas of the receiving country.[15] The Authority determined that the applicant could relocate to Kabul[16] because he would not face a real chance of persecution there for reason of his 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[17] and would not face a real chance of persecution on the basis of his being a Shia Hazara.[18] The basis for the conclusion was that the applicant had a low profile and would therefore not be targeted[19] and because he is a single able-bodied man without vulnerabilities.[20]
[15] section 5J of the Migration Act
[16] CB149 [24]
[17] CB151 [29]
[18] CB150 [27]
[19] CB151 [29]
[20] CB 151 [31]
In reaching its conclusion the Authority relied in part on independent information from the Bureau of Investigative Journalism, Migration Crisis, 16 July 2015, cited in DIBP,[21] Protection Assessment Guidance Note No. 5, and two UNHCR[22] reports dated 1 October 2012 and 6 August 2013.[23] The Bureau of Investigative Journalism was reported as stating that failed asylum seekers were often seen as a source of suspicion and money and this was supported by the UNHCR research paper. The UNHCR report cited a footnote 37 and advised that relocation may only be a reasonable alternative where the individual can expect to benefit from meaningful support of his own extended family, community or tribe in the area of prospective relocation. The UNHCR advised that the only exception to this requirement of external support “single able-bodied men without identified vulnerabilities”.[24]
[21] Department of Immigration and Border Protection
[22] United Nations High Commissioner for Refugees
[23] cited at footnotes 35, 36 and 37 at CB 151
[24] CB 151 [31]
The Authority used the same reasoning in respect of the reasonableness of relocation in the context of complementary protection.
The applicant complains that the findings (in relation to the refugee and complementary protection criteria) of the Authority that he could relocate to Kabul were legally unreasonable because they lacked an evident and intelligible justification and because they were inconsistent with the findings of the Authority in relation to the applicant’s personal profile.
The applicant relies upon the decision of the High Court in Minister for Immigration v Li.[25] It remains an open question whether the same reasoning that is applied to an exercise of discretion can be applied to fact finding or, an ultimate conclusion.[26] Whatever may be the ultimate outcome of that question, at the present time, when dealing with fact finding, regard must be had to the guidance of the High Court in SZMDS v Minister for Immigration.[27] The question, therefore is, whether in February 2016, when this decision was made, it was one about which reasonable minds could differ.
[25] (2013) 249 CLR 332
[26] see BFH16 v Minister for Immigration [2020] FCAFC 54 at [27]-[41]
[27] (2009) 240 CLR 611
First, it should be noted that both the delegate and the Authority came to the same conclusion on the material before them. Secondly, it should be noted that circumstances can change and quite quickly.[28] It may be conceded that if this decision had been made at the same time as DZU16, or later, the outcome might have been different.
[28] See for example the discussion in the Full Federal Court appeal judgment in Minister for Immigration vDZU16 (2018) 253 FCR 526 at [22]
I accept the Minister’s submission that “extreme illogicality is necessary to make out legal unreasonableness in this context”.[29] If reasonable minds could differ about the Authority’s assessment of the evidence, that assessment cannot be said to be illogical or irrational.[30]
[29] See CQG15 v Minister for Immigration (2016) 253 FCR 496 at [59]-[61]; DAO16 v Minister for Immigration (2018) 258 FCR 175 at [30]
[30] SZMDS at [131]
The applicant’s submissions do not identify any “extreme” illogicality as required but argue with the Authority’s reasoning and in substance seek merits review, contrary to SZMDS at [96].
It was open to the Authority to find that the applicant did not face a real chance of being abducted and executed or killed by a bomb attack in Kabul for the reasons it gives at [25]-[27]. The fact that the Authority accepted that past attacks have occurred in Kabul does not mean that it was obliged to find that the applicant had a well-founded fear of such harm on the basis of the country information it cites at [25]-[26]. The country information provided a mixed picture for the security of Hazaras in Kabul, the interpretation of which was a factual matter for the Authority.[31] The applicant’s disagreement with its interpretation is emphatic but not indicative of jurisdictional error.
[31] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]
The fact that the Authority accepted at [20] that the applicant had been stopped and threatened in his home area in 2012 did not mean that he necessarily had a high profile in Kabul. There is no illogicality in the Authority finding that the applicant did not have a high profile like political leaders or foreign advisers who had been targeted in Kabul.[32] Obviously the applicant was not in such a position. The claim in the applicant’s submission that the Taliban might find him in Kabul presupposes that they would look for him in Kabul, whereas the Authority stated at [29] there was no evidence that the Taliban “have pursued and killed or otherwise harmed any teaching staff in Kabul”. Again, the applicant’s disagreement, while understandable, does not rise above a dispute over the merits of the decision.
[32] CB 151 [29]
In particular, this ground does not rise above an argument that the Authority should have found the applicant had a real chance of harm in Kabul. However that is no more than asserting that the Authority made a wrong finding of fact, which is not an error of law.[33]
[33] Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2 at [44]
No legal unreasonableness has been established in the Authority’s reasoning that the applicant would not face a real chance of harm in Kabul. Accordingly the first ground fails.
Ground 5 – did the Authority err by failing to consider exercising its discretion to get new information from the applicant?
The Authority at [6]-[11] dealt with the provision of new information for the purposes of the review and considered most of it. That information included the most recent report on the Hazara community in Afghanistan from DFAT (DFAT Report). I have previously found that it may be unreasonable for the Authority not to consider getting the most up to date country reference report.[34]
[34] BDI17 v Minister for Immigration & Anor [2018] FCCA 2162
The applicant contends that the new information in the DFAT Report was relevant to the question of relocation to Kabul and was dealt with by the Authority at [25]-[26] of its decision.[35] The Authority referred to the new information and drew conclusions on the real chance of persecution and the reasonableness of relocation to Kabul having regard, in part, to the new information.
[35] CB 149
I do not accept that the receipt of the new information in the DFAT Report required the Authority to consider getting further information from the applicant, in addition to the substantial new information he had already provided to the Authority.
I accept the Minister’s submission that the applicant’s contentions in this regard are contrary to the scheme of Part 7AA of the Migration Act, as dealt with in DGZ16 v Minister for Immigration[36] at [68]-[78].
[36] (2018) 258 FCR 551
The second ground claims the Authority erred in not considering exercising its discretion in s.473DC of the Migration Act to invite the applicant to comment on the new information it records at [7]. However, again, this is contrary to the scheme of Part 7AA as held in DGZ16 at [68]-[78]. In this case the delegate had also found that it was reasonable for the applicant to relocate to Kabul.[37] Having regard to the principles in DGZ16 the mere fact that the Authority considered some new information relevant to this issue could not enliven any duty under s.473DC given the Authority’s general obligation to decide the matter without interviewing the applicant[38] and being under no duty to get new information.[39] DZU16 at [79]-[81] relied upon by the applicant is distinguishable as in that case the delegate asked the applicant about relocation to Kabul whereas the Authority found he could relocate to Mazar-e-Sharif.[40] In this case as already stated the delegate had also found that the applicant could relocate to Kabul, and the Authority accepting some new information on this topic did not give rise to any obligation under s.473DC to seek comment from the applicant. This ground fails.
[37] CB 126-129
[38] section 473DB(1)(b)
[39] section 473DC(2)
[40] DZU16 at [40]-[43], [81]
Other matters
As I have already noted above, if this decision by the Authority had been made later in time there might have been a different outcome. The recent trend in Authority decisions concerning Hazaras in Afghanistan is against the proposition that they can relocate to Kabul.[41] That trend in reasoning, to my mind, renders this decision by the Authority unsafe. The merits of the Authority decision are, of course, beyond the scope of this proceeding. Further, it is not the Minister’s fault that the case has taken more than four years to reach this point. Nevertheless, I feel compelled to recommend that the Minister’s Department consider afresh this case in order to ensure that a reliable conclusion has been reached on the risks confronting this applicant in Afghanistan should he return there.
[41] See, for example FFQ18 v Minister for Immigration & Anor [2020] FCCA 1730; ALI18 v Minister for Immigration & Anor [2019] FCCA 2257
Conclusion
The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 August 2020
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