Axs19 v Minister for Immigration
[2019] FCCA 3353
•22 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXS19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3353 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in the Immigration Assessment Authority’s decision – Amended Application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D |
| Cases cited: Aon Risk Services v ANU (2009) 239 CLR 175 GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 |
| Applicant: | AXS19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 84 of 2019 |
| Judgment of: | Judge Kemp |
| Hearing date: | 17 October 2019 |
| Date of Last Submission: | 17 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 22 November 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Chisholm Law |
| Counsel for the First Respondent: | Ms Taggart |
| Solicitors for the First Respondent: | Sparke Helmore |
THE COURT ORDERS THAT
Leave be granted to the First Respondent to amend its title to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave be granted to the Applicant to rely on his Amended Application filed 17 October 2019.
The Applicant’s Amended Application filed 17 October 2019 be dismissed.
The Applicant pay the First Respondent’s costs of $500.00 in respect of the leave question.
The balance of the First Respondent’s costs are reserved for determination. The parties are to file and serve any written submissions as to costs within 21 days of today’s date. The Court will determine the issue of costs on the papers unless the parties wish to be heard orally.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 84 of 2019
| AXS19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of background, the Applicant is a citizen of Afghanistan born on 31 December 1996.
On 27 May 2013, the Applicant arrived on Christmas Island as an unlawful maritime arrival.
On 17 June 2013, the Applicant was interviewed upon his arrival (“the arrival interview”).
On 4 July 2016, the Department notified the Applicant that the Delegate of the First Respondent (“the Delegate”) had lifted the bar under s.46A of the Migration Act 1958 (“the Act”) and invited him to apply for a Temporary Protection Visa (subclass 785) visa or Safe Have Enterprise (Subclass 790) visa (“SHEV”).
On 20 March 2017, the Applicant applied for a SHEV.
The Applicant’s claims for protection, are as set out in a letter from Assist Australia Migration dated 19 March 2017 (see the Court Book being made Exhibit “Court 1” with references to its pages as CB page number, namely here as CB 28-39) which accompanied his SHEV application, together with his interview before the Delegate on 15 February 2018, which can be summarised, as follows:
a)He is of Tajik ethnicity and is from the Logar Province;
b)He has spent time in a Western country, taken on Western values and he is no longer an observant Muslim;
c)He fears persecution from the Taliban and other Sunni extremist groups, including, but not limited to, the Islamic State, on the basis of his:
i)Pro-government, anti-Taliban political opinion;
i)Actual /Perceived links and support of the Western forces and organisations as a result of his ethnicity and his father’s long service to the International forces. His father was a truck driver for an international organisation for 17 years and then worked in another transport business that was contracted to transport fuel for the American forces in Afghanistan. The Applicant’s father was involved in an attack by Anti-Government Elements (“the AGEs”), where one man was killed;
ii)Circumstances as the eldest son of a wealthy Tajik family giving rise to the prospect of kidnapping for ransom by the AGEs;
iii)Support/Perceived support for the Afghani government on account of his father’s past employment with the International forces and his uncle’s employment with the Afghani police force; with his uncle being targeted by the Taliban in terms of an attack on his home because of the work he did in protecting convoys for transporting fuel; and because he was also killed by a bomb blast in 2014 in Kabul (but, subsequently, corrected to Logar) by the AGEs;
iv)History of Soviet support; and
v)Support for the Hazara Shia community and a perceived shirker of Sunni Islam.
On 8 November 2018, the Delegate refused to grant the Applicant a SHEV on the basis that, whilst it accepted that the Applicant held a profile that would attract adverse attention in the Logar Province, it was satisfied that the Applicant could, safely, relocate to Kabul. Accordingly, the Delegate found that the Applicant did not meet the requirements of s.36(2)(a) or 36(2)(aa) of the Act.
On 14 November 2018, the matter was referred to the Immigration Assessment Authority (“the IAA”), the Second Respondent, herein.
On 29 November 2018, the Applicant provided written submissions together with a parentage testing procedure report in support of his application.
On 13 December 2018, the Applicant provided a birth certificate for his child to the IAA.
On 5 February 2019, the IAA affirmed the Delegate’s decision not to grant the Applicant a SHEV.
In the decision of the IAA, the IAA:
a)Had regard to the material referred to it by the Secretary in accordance with s.473CB of the Act;
b)Had regard to the material, referred to in paragraph 9 above, in relation to that material raising a new claim that the Applicant would use his skills and work experience gained during his volunteering with the Red Cross to seek work with foreign organisations and non-government organisations (“the NGOs”) in Kabul and identified inconsistencies in the Applicant’s evidence about how long he had been volunteering. In circumstances where there was no assertion that the Applicant’s desire to work with international organisations was a recent development, the IAA noted its concerns that the Applicant had not raised that claim earlier. The IAA also noted its concerns about the credibility of the claim and determined that it was not satisfied that there were exceptional circumstances to consider it under s.473DD of the Act;
c)Had regard to the material, referred to in paragraph 9 above, in relation to new information namely that the Applicant had become aware that he was the father of a child; had reconciled with the mother; planned to marry her; and was intending to convert to Catholicism. The IAA noted that the Applicant had provided a purported DNA test that confirmed that he was the father and that, on 13 December 2018, he provided an amended birth certificate for the child. Despite some concerns about the material, the IAA found that it was personal information that was, at least, capable of being believed and that it represented a material change in the Applicant’s circumstances such that, had it been before the Delegate, it may have affected the consideration of the Applicant’s claims. The IAA was, therefore, satisfied that both s.473DD(a) and (b) of the Act were met (CB 151-152, [6]);
d)Despite expressing some concerns about the Applicant’s father’s identity, it accepted the Applicant’s evidence about his father’s identity, as claimed (CB 153, [12]);
e)Noted that the Applicant’s whole family, including his father, continued to reside in Afghanistan without coming to harm and that most of his family continued to reside at the same address (CB 155-156, [21]);
f)Found that the Applicant was unable to put forward a consistent and plausible narrative in regard to the threat that the Taliban posed to his family;
g)Did not accept that the Applicant’s father faced a sustained level of attention from the Taliban or that the Applicant’s uncle was a member of the Afghani police, or that his family would be unable to, regularly, attend school and to continue to reside at the same address, if the family were subject to a direct threat from the Taliban (CB 156, [22]);
h)Was not satisfied that the Applicant faced a real chance of harm from the Taliban (CB 156, [24]);
i)Considered the new information provided about the Applicant’s child, his relationship with the mother and his intention to convert to Catholicism (the child’s mother’s faith);
j)Considered the Applicant’s claim that he would be targeted upon his return, as he would now be regarded as an apostate, that his family would denounce him and that he would be vilified by the wider Sunni community (CB 156, [25]);
k)Noted that in the new information, the Applicant claimed that he had been in a relationship with the child’s mother for 3 years from 2015 to 2017 (CB 137) and recorded that, even if this was approximate and the relationship started at the very beginning of 2015, it would have to have endured for the better part of 2017. However, further noted, in the Applicant’s SHEV application dated 20 March 2017, that he had made no mention of this relationship and had indicated that he was not married or in a de facto relationship and that he had no personal contacts in Australia (CB 156-157, [27]). Further, had difficulty accepting that the Applicant could not have provided any of this new information before the Delegate’s decision but was able to provide it to the IAA, just 20 days later (CB 157, [28]);
l)Noted it had issues with the probity of the Applicant’s evidence and the lack of corroborating evidence from the mother (CB 157, [29]-[30]);
m)Found that even if the Applicant had fathered the child, it was not satisfied the mother was a devout Catholic, that the Applicant had, actively, taken on the role of father, was making active preparations to be baptised or that he had a genuine interest in doing so, in the future (CB 157, [31]);
n)Was not satisfied that the Applicant would face a real chance of harm on return to Afghanistan on the basis of his personal situation or his claimed interest in Catholicism (CB 158, [33]);
o)Noted country information did not support the Applicant’s claim that the Taliban target Tajiks on the basis of their ethnicity ([37]);
p)Noted that the Applicant did not claim that his siblings had ever been targeted for kidnapping, despite remaining in the same home (CB 158-159, [38]);
q)Was not satisfied that the Applicant faced a real chance of harm because of his ethnicity or his family’s perceived wealth (CB 159, [39]);
r)Found, relying on country information that, whilst the Taliban maintained a presence in Logar, it was not satisfied that the Applicant faced a real chance of harm because of the security situation there (CB 159, [41] and [43]);
s)Was not satisfied that the Applicant faced a real chance of harm as a failed asylum seeker returning from a Western country or due to his volunteer activities (CB 159-160, [45]-[49]);
t)Accepted that the Applicant was no longer a committed Muslim, but found, based on his family’s permissive attitude towards his religious practices (or lack thereof) in the past, his lack of conversion to another religion and that he had not encouraged others to convert, that the Applicant did not face a real chance of harm, in this regard (CB 160-161, [51]-[55]);
u)Found that the Applicant did not meet s.36(2)(a) of the Act (CB 161, [56]);
v)Considered that Applicant’s claims under the complementary protection criteria and concluded that the Applicant did not face a real risk of harm arising from his profile as a Tajik male, his family connections, perceptions that the family was wealthy, the security situation in Logar Province, being a non-observant Muslim, his volunteer work or due to him being a returning asylum seeker who had resided in a Western country (CB 162, [59]);
w)Found that, whilst that Applicant had not made any explicit claims of harm stemming from the possible separation from his child and partner (the child’s mother), for the reasons set out in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751, it was not satisfied that separation from his family as a consequence of his removal from Australia, would result in significant harm ([CB 162, 60]);
x)Found that the Applicant did not meet s.36(2)(aa) of the Act (CB 162, [62]).
On 6 March 2019, the Applicant, when self-represented, filed an Application in this Court. That application sought to agitate the following grounds of jurisdictional error, as set out therein:
a)I believe incorrect country information was used;
b)I believe there has been a “judicial” error;
c)I believe there are inconsistencies in the assessment of my case such as the claim that I am Sunni Pashtun when I am Sunni Tajik.
On 15 March 2019, the First Respondent filed a Notice of Address for Service. On the same day, the IAA as the Second Respondent, herein, filed a Notice of Address for Service submitting to any orders of the Court, save as to costs.
On 18 March 2019, the First Respondent filed a Response. That Response, simply, sought that the Applicant’s Application be dismissed with costs noting that the grounds of opposition relied upon by the First Respondent were that the Application did not provide any particulars or any legal ground of review and that the Application invited the Court to undertake an impermissible merits review and that the Application did not establish any jurisdictional error in the decision of the IAA.
On 20 March 2019, Registrar Benter in this Court made the following orders:
1. By 4:00pm on 17 April 2019, The First Respondent shall file and serve a bundle of relevant documents (green book) in an electronic form and for that purpose, the document shall:
a. be in portable document format (“PDF”);
b. be capable of being searchable for specified text;
c. have an index and shall be paginated;
d. have each entry in the index bookmarked; and
e. be set so that when opened:
i. it shall display at 100% zoom; and
ii. the bookmarks menu shall be displayed.
2. By 4:00pm on 15 May 2019, the Applicant shall file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
3. By 4:00pm on 15 May 2019, the Applicant shall file and serve any affidavit containing any additional evidence upon which the Applicant proposes to rely relevant only to the grounds of review.
4. By 4:00pm on 12 June 2019, the First Respondent shall file and serve any affidavit upon which it proposes to rely.
5. By 4:00pm 35 days prior to the hearing, the Applicant shall file and serve written submissions in support of the application for review.
6. By 4:00pm 21 days prior to the hearing, the First Respondent shall file and serve written submissions in respect of the First Respondent’s response to the application for review.
7. The application be listed for final hearing before a judge on 17 October 2019 at 10.15am in the Federal Circuit Court of Australia sitting at Perth.
8. Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days’ clear notice of the time, date and place of that listing.
On 10 April 2019, the Applicant appointed Mr Douglas of Douglas Cheveralls Lawyers as his legal representative.
On 15 April 2019, Judge Kendall of this Court made orders, by consent, varying the timetable set out in paragraph 16 above, to the following effect:
1. The time for the Applicant to file and serve an Amended Application, pursuant to order 2 of the orders of Registrar Benter made 20 March 2019, be extended to 15 July 2019.
2. The time for the Applicant to file and serve any affidavit pursuant to order 3 of the orders of Registrar Benter made 20 March 2019, be extended to 15 July 2019.
3. The time for the First Respondent to file and serve any affidavit pursuant to order 4 of the orders of Registrar Benter made 20 March 2019, be extended to 12 August 2019.
There was not variation to the orders for the filing of written submissions.
On 17 September 2019, the First Respondent filed written submissions. The Applicant maintained that those submissions had been filed early. The First Respondent submitted that its submissions were filed in accordance with the directions made, noting that the Applicant had not complied with those directions.
On 18 September 2019, the Applicant appointed a new legal representative, being Mr Blades of Chisholm Law, who filed a Notice of Address for Service on that day.
On 27 September 2019, the Applicant filed his written submissions which referred to an Amended Application. That Amended Application had not been filed but it would appear that a copy had been provided to the First Respondent (as conceded by it) some 3 weeks before the hearing scheduled for 17 October 2019.
It would appear that the Applicant sought the written consent of the First Respondent to the filing of his Amended application in terms of an email dated 18 September 2019. The First Respondent indicated, in its email of 23 September 2019, that it would not consent to the proposed amended timetable, including the filing of an Amended Application, noting that there was no explanation then provided for the Applicant’s delay in changing his legal representation.
It would also appear that the Applicant sought to engage with the Court, in terms of the matters raised in paragraph 22 above, and received a response that any application for an amendment would need to be raised with the Court on the morning of the hearing.
On the hearing on 17 October 2019, Mr Blades appeared for the Applicant and Ms Taggart of Counsel appeared for the First Respondent.
At the commencement of the hearing, the Applicant then sought leave to file and to rely on his Further Amended Application. If such leave was to be granted then the grounds of his original Application would not then be pressed.
The First Respondent objected to the Applicant filing and relying upon the Amended Application for the reasons set out, below:
a)Orders made by Registrar Benter on 20 March 2019 required the Applicant to file any evidence that he intended to rely by 15 March 2019 and for written submissions to be filed 35 days before the hearing (being 12 September 2019) and that there had been no compliance by the Applicant with this;
b)Orders were then varied, by consent, by Judge Kendall on 15 April 2019, wherein the Applicant was ordered to file and serve any Amended Application by 15 July 2019. The time for the filing of submissions was not varied on this date and remained due by 12 September 2019 and that there had been no compliance by the Applicant with this; and
c)There was no adequate explanation provided by the Applicant as to any reason for the non-compliances, as referred to in (a) and (b) above.
The Applicant tendered, as Exhibit “A”, a bundle of email correspondence which included exchanges between the Applicant’s legal representatives and the First Respondent’s legal representatives in the period between 10 April 2019 and 23 September 2019. That material was produced to explain the delay in progressing the Amended Application. The First Respondent was critical of the material in terms of it, adequately, explaining the delay. The First Respondent also tendered, as Exhibit “1”, an email chain passing between the parties’ legal representatives. The Applicant conceded that his delay was the responsibility of his legal representatives who, initially, briefed counsel (Mr Edwards) in April 2019, were awaiting an amended document from him and then obtained other representation whereby an “alternative strategy” was adopted and the instructions to Mr Edwards were then withdrawn in June 2019. Then, it would appear, the Applicant’s prior legal representatives ceased to act when Mr Blades of Chisholm Law filed a Notice of Address for Service on 18 September 2019. On 27 September 2019, an affidavit from Noella Lee Woodward was filed by the Applicant annexing a copy the transcript of the Applicant’s SHEV interview. The Court noted that the First Respondent had provided the email link to enable the audio of the SHEV interview to be accessed on 10 September 2019, following a request made for that recording on 4 September 2019. On 27 October 2019, an Amended Application was “eLodged” with the Registry of the Court but because the time for filing had passed, this document could not be accepted. An email from the Chambers of Judge Kendall noted that if consent to the amendment was provided by the First Respondent, then consent orders could be forwarded to Chambers which would have then implemented its filing. However, no such consent was forthcoming.
The grounds and particulars of the Further Amended Application are set out, as follows:
1. The IAA made a jurisdictional error, through failing to take into account critically material or dispositive evidence, or by failing to adjudicate on the existence of an important integer of a claim made by the Applicant, in finding at [43] that it was not satisfied that the Applicant faces a real chance of harm because of the security situation in Logar.
Particulars
a. In reaching the conclusion that it was not satisfied that the Applicant faces a real chance of harm because of the security situation in Logar, the IAA stated at [41], last sentence “Despite making a number of general statements about the apparent threat they faced from the Taliban, the Applicant did not put forward any specific examples of incidents that had affected his immediate family in Logar itself.”
b. In fact, the Applicant claimed in the interview with the Delegate conducted on 15 February 2018 that his uncle, who had been working as a member of the Afghani police force in Logar, was killed by a bomb blast in Logar in 2014. See:
i. Transcript of interview with the Delegate, annexed to the affidavit of N.L. Woodward, p 4;
ii. Delegate’s finding regarding “Applicant’s Uncle – Local Afghan Policeman”, at CB 115;
iii. IAA’s finding regarding the uncle at [15], CB 154.
c. The IAA made a finding at [15] that the Applicant’s uncle was not a member of the Afghani police force, but it made no finding in response to the Applicant’s claim that his uncle had been killed in a bomb blast in Logar.
2. Alternatively, or in addition, the IAA made a jurisdictional error by failing to make a finding on a material question of fact.
Particulars
a. Section 25D of the Acts Interpretation Act 1901 (Cth) applied to the IAA with the consequence that the IAA’s statement of reasons was required to set out the IAA’s findings on material questions of fact and refer to the evidence or other material on which those findings were based.
b. The question whether the Applicant’s uncle had been killed in Logar was material to the IAA’s decision, as demonstrated by its statement that: “…the Applicant did not put forward any specific examples of incidents that had affected his immediate family in Logar itself” (at [41], last sentence);
c. The IAA made a finding that the Applicant’s uncle had not been a member of the Afghani police force (at [15]), but it made no finding on the separate and material question whether the Applicant’s uncle had been killed by a bomb blast in Logar as claimed by the Applicant.
3. In finding at [39] that the Applicant does not face a real chance of harm, including kidnapping or extortion, or discriminatory treatment amounting to serious harm because of his ethnicity or his family’s perceived wealth, the IAA made a jurisdictional error through failing to take into account critically material or dispositive evidence, or by failing to adjudicate on the existence of an important integer of a claim made by the Applicant,
Particulars
a. At [38], the IAA stated: “Not only did the Applicant and his siblings continue to attend school, the Applicant never made mention of them taking particular precautions in this regard.
b. In making the above finding, the IAA overlooked the Applicant’s evidence to the Delegate that his brothers and sisters were getting targeted, that they had left the area in which the Applicant had been living with them and attending school (Bik Village), and that they had moved to the centre of Logar (Transcript Affidavit, pp 9, 22).
4. The IAA made a jurisdictional error in finding at [60] that separation of the Applicant from his child and partner as a consequence of his removal from Australia does not found a claim for protection under s36(2)(aa) of the Act.
Particulars
a. In making the above finding, the IAA applied SZRSN v Minister for Immigration and Citizenship [2013] FCA 751.
b. SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 was wrongly decided, with the result that the IAA in the present matter overlooked an integer of the Applicant’s claim, alternatively, overlooked a claim that clearly emerged from the materials before it.
c. It is expected that this point of law will be resolved by the Full Court in the appeal GLD18 v Minister for Home Affairs & Anor, commenced on 9 August 2019. The appeal matter number is VID835/2019.
The First Respondent agreed that the Court could reserve on the question as to whether leave would be granted on the basis that, if leave was granted, it would seek the costs thrown away of preparing its earlier written submissions in the sum of $500.00 and noting that it was, in any event, able to still deal with the matter.
The Court accepts that the First Respondent, accurately, summarized the relevant principles governing the Court’s exercise of its discretion to grant the leave sought by the Applicant. The Court must consider and weigh matters including any explanation for non-compliance with orders, any explanation for delay, any prejudice to a party and whether any such identified prejudice can be overcome or remedied and the merits of the proposed amendments, in any event.
The Court accepts that a punitive response to the substance of a late amendment application is not appropriate but also accepts that a party is not to be rewarded by weighing in its favour the disruptive consequences of its own application. See Aon Risk Services v ANU (2009) 239 CLR 175.
The First Respondent conceded that it was, otherwise, able to deal with the grounds of the Applicant’s Amended Application, arguing in its submissions that Grounds 1, 2 and 3 were without merit. In terms of Ground 4, the First Respondent submitted that this Court was bound by the decision of SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 and that, as the IAA had applied that authority, there was no error of law. The Applicant conceded that, on the present state of the law, the submission of the First Respondent, in that regard, was correct. The Court also accepts that agreed position.
Accordingly, the Court accepts that there has been some explanation (albeit not, entirely, satisfactory) for the delay in bringing the Amended Application. In that regard, the Court is of the view that such delay appears to have been not that of the Applicant, but of his legal representatives retained from time to time. Given the paucity of the grounds set out by the Applicant in his Application, there would be a greater prejudice to him in not being able to agitate the grounds as now set out in more detail in his Amended Application. No sufficient prejudice has been identified in the First Respondent which could not be dealt with by way of a costs order in terms of the work thrown away in preparing submissions not now relied upon. Accordingly, leave will be granted for the Applicant to rely on his Amended Application filed on 17 October 2019.
The Applicant’s submissions in relation to Grounds 1 and 2
The Applicant made the following submissions in relation to Ground 1 of his Amended Application:
a)In his protection visa application, it was claimed that the Applicant’s uncle was a local police officer in the family’s home area of Logar (CB 36-38, at [21]-[26]). Further, it was claimed that the uncle was targeted by the Taliban because of the work he did and that he had been killed in a bomb blast in a Chiefs meeting at police headquarters in Kabul in November 2014. The Applicant stated that the bomb blast had been organised by the Taliban; that they had used a suicide bomber for the attack; that there were about 9 people killed in the attack; and that the Applicant’s uncle was one of those killed: (CB 37 at [26]);
b)At the commencement of his interview with the Delegate, the Applicant clarified that his uncle had been killed by a bomb blast in Logar, not Kabul (Transcript Affidavit, p 4);
c)The Delegate did not, further, discuss with the Applicant the issue of his uncle’s death and the place where that had occurred;
d)In the Delegate’s decision, the Delegate accepted that the Applicant’s uncle was a policeman in the village of Ahmad Bik, Kolangar District, Logar Province, Afghanistan (CB 115), but did not discuss the location where the uncle had died. The Delegate’s decision does not disclose the Applicant’s correction that his uncle had died in Logar rather than Kabul. The Delegate concluded that the Applicant’s fear of persecution was well founded based on his imputed political opinion in the Logar Province but decided that he was not entitled to a protection visa because he could relocate to Kabul (CB 126);
e)It was evident that the IAA had listened to the recording of the interview with the Delegate in order to glean the information that the Applicant had made the claim that his uncle had been killed in Logar rather than Kabul (see IAA’s decision at [15]);
f)The IAA dealt with the killing of the Applicant’s uncle at paragraph 15 of its decision, where it stated:
The Applicant’s written claims also state that the uncle was killed at a meeting in Kabul in November 2014 but at interview he stated that the uncle was actually in Logar when the fatal attack occurred. I note that this would mean the uncle was still an active member of the Afghani police well after the date the Applicant arrived in Australia seeking protection. However, the Applicant did not detail any instances in which the family were directly targeted on account of their connection to the uncle in his SHEV application lodged in March 2017. Given the above, I do not accept that the Applicant’s uncle was a member of the Afghani police.
g)What was missing from the IAA’s decision was a consideration of the claim and evidence put forward by the Applicant that his uncle had been killed in Logar. The IAA engaged with the evidence that his uncle had been a policeman in Logar, and, unlike the Delegate, found that the uncle was not a member of the Afghani police. That this evidence was material to the IAA’s task is confirmed by its statement at [41] that:
Despite making a number of general statements about the apparent threat they faced from the Taliban, the Applicant did not put forward any specific examples of incidents that had affected his immediate family in Logar itself.
h)Even if, contrary to the Applicant’s claim, it was true that his uncle had not worked as a policeman in Logar, there was still an extant claim before the IAA that his uncle (performing some other vocation) had been killed in Logar, which was material to the IAA’s decision;
i)The IAA, therefore, had made a jurisdictional error by overlooking critically material or dispositive evidence, or by failing to adjudicate on the existence of an important integer of a claim (being that the Applicant’s uncle had died, that his death had been by way of a bomb blast in Logar and whether his death had any bearing on the Applicant’s claim for protection), made in pursuit of the grant of a protection visa: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99;
j)Similarly, in the present matter, the IAA needed to accept or reject the Applicant’s claim that his uncle had been killed in Logar in order to then test whether, when considered with the country information and the evidence contained in the Delegate’s interview, that there was a real chance that the Applicant would suffer serious harm, if returned to Afghanistan.
The Applicant made the following submissions in relation to Ground 2 of his Amended Application:
a)Alternatively, or in addition, the IAA failed to make a finding on a material question of fact. Section 25D of the Acts Interpretation Act 1901 (Cth) applied to the IAA with the consequence that the IAA’s statement of reasons was required to set out the IAA’s findings on material questions of fact and refer to the evidence or other material on which those findings were based: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; and
b)The question whether the Applicant’s uncle had been killed in Logar was material to the IAA’s decision, as demonstrated by its statement in the last sentence (at [41]) that: “…the Applicant did not put forward any specific examples of incidents that had affected his immediate family in Logar itself”. The IAA made a finding that the Applicant’s uncle had not been a member of the Afghani police force (at [15]), but had made no finding on the separate and material question as to whether the Applicant’s uncle had been killed by a bomb blast in Logar, as claimed by the Applicant.
The First Respondent’s Response to Grounds 1 and 2
The First Respondent submitted, in response to Grounds 1 and 2, that:
a)The evidence about the Applicant’s uncle was that it was his work as a police officer which had brought him to the attention of the Taliban, in part because as part of his role as a police officer, the Applicant’s uncle would protect convoys which transported fuel for the American forces;
b)The Applicant’s claim and evidence was that, because of his father’s and uncle’s activities in Afghanistan, the Applicant and his immediate family were at, particular, risk from the Taliban;
c)The IAA did not accept that the Applicant’s uncle had been a police officer. In that regard, the Court accepts that that finding was open to the IAA on the evidentiary material before it;
d)In those circumstances, it was unnecessary to consider whether the Applicant’s uncle had died in Logar (or at all). That is because the essential premise of the Applicant’s claim had been that his uncle had been targeted and killed by the Taliban because of his status as a police officer. If the fact of the uncle’s status as a police officer was, positively, rejected by the IAA, then whether or not (or how and where) the Applicant’s uncle had died was not relevant to the Applicant’s claim to be in need of protection. So much can be demonstrated by the IAA’s reasons at [21], where it stated:
The Delegate also put to the Applicant that his whole family, including his father, continues to reside in Afghanistan. The Delegate asked why he would be in any more danger than them. The Applicant did not supply a direct answer to this question. He stated that more of his family would have come to Australia if they could afford it. That may well be the case. However, it does little to address to the fact that his father and the rest of his family have continued to reside in Afghanistan without coming to harm. Indeed, most of his family continues to reside at the same address. His father continues to earn a living and travel home with some regularity to see his family. At this point in the interview, the Applicant then stated that there had been a recent suicide bomb attack in Logar and that his brother had been in the vicinity doing hopping. The Applicant did not indicate that his brother had been targeted. He gave no further details about the location of the attack or who perpetrated the attack. The Applicant only mentioned this incident at the point the delegate had pointed out to him that his whole family remained in Afghanistan without apparent incident. Even assuming that this event occurred, its relevance to the Applicant’s claims is limited.
The Court accepts the First Respondent’s submission, in this regard. The finding of the IAA that the Applicant’s uncle was not a police officer was open on the evidence before it and is not the subject of challenge in this Court.
e)Further, as can be seen, the IAA referred to the Applicant’s evidence that his brother had been in the vicinity of a bomb blast (caused by a suicide bomber) in Logar and concluded, that while there was no evidence or suggestion that his brother had been targeted in that attack, that that event was of limited relevance and that any submission that “there was still an extant claim…that the Applicant’s uncle (performing some other vocation) had been killed in Logar” was unpersuasive and against the evidence. Again, the Court accepts the force of this submission.
f)There was no separate or distinct contention that the Applicant’s uncle had, firstly, performed some other vocation or, secondly, had died other than in a meeting of police chiefs and because he had been targeted by the Taliban. The Court accepts this submission.
g)There was no relevant finding available on the evidence (or claimed by the Applicant) as to his uncle or his death upon which the IAA was required to make relevant findings now contended for (i.e. the vocation or reasons why it was said the Applicant’s uncle was targeted by the Taliban). The Court accepts this submission.
h)Finally, the Applicant’s submissions focus upon the concluding sentence of the IAA’s reasons at [41] to submit that the IAA did not consider all of the evidence (or make findings), as regards the security situation in Logar.
i)In the impugned sentence, as set out in paragraph 35(b) above, the IAA makes reference to the absence of specific examples of incidents that had affected the Applicant’s “immediate” family in Logar. This was understandable as being a reference to the Applicant’s siblings and parents and not to his uncle. The IAA had, already, referred to the Applicant’s claim that his uncle had been a police officer and had rejected that claim. Country information was also referred to which identified the general security situation in Logar. As such, there was no error in the last sentence of [41] of the IAA’s reasons. It was a conclusion that was confined to the Applicant’s immediate family (and not his uncle) because that was the only class of persons who, on the Applicant’s claim, could have been at risk from the Taliban. The Court accepts this submission.
j)Finally, as set out in paragraph [15] of its reasons, the IAA observed that:
The Applicant gives few details about this uncle, although I accept that he was quite young at the time. However, there are some issues with the Applicant’s account of his uncle’s work as a policeman. The Applicant said in his written claims that his uncle always tried to conduct his duties discreetly to avoid being targeted by the Taliban. However, the Applicant also said that the uncle was “actively involved” in protecting convoys transporting fuel for the Americans. It is difficult to imagine an activity more likely to earn the direct ire of the Taliban. The Applicant himself acknowledges that the “Taliban looked for any opportunity to attack the American forces and targeted anyone who had any association with them in retaliation”. This is repeatedly borne out by country information noting the Taliban’s tendency to target anyone seen to be aiding western forces or international actors. The Applicant also said that the uncle’s life was constantly under threat. At one point in the interview, the Applicant seemed to imply that the Taliban used to come and fight in his uncle’s village in an effort to kill his uncle and that the villagers fought them off. This mirrors his written claims that state the Taliban used to come into the village and attack his uncle’s home. I find it difficult to accept that the Taliban would be sufficiently motivated to storm the uncle’s village on more than one occasion and be fought off each time by villagers, given that there are documented instances of the Taliban successfully attacking major police facilities and fortified compounds, sometimes in coordinated attacks that have killed scores of officers. The Applicant’s written claims also state that the uncle was killed at a meeting in Kabul in November 2014 but at interview he stated that the uncle was actually in Logar when the fatal attack occurred. I note that this would mean the uncle was still an active member of the Afghani police well after the date the Applicant arrived in Australia seeking protection. However, the Applicant did not detail any instances in which the family were directly targeted on account of their connection to the uncle in his SHEV application lodged in March 2017. Given the above, I do not accept that the Applicant’s uncle was a member of the Afghani police.
k)In terms the above quote, it was noted that the Applicant had not identified any instances of when the Applicant’s family was directly targeted by the Taliban as a result of his uncle’s status as a police officer. The Court accepts that it is relevant to have regard to that when understanding the IAA’s reasons overall.
The Court concludes, given the above, that there is no merit to Grounds 1 and 2.
The Applicant’s submissions in relation to Grounds 3
The Applicant made the following submissions in relation to Ground 3 of his Amended Application:
a)The Applicant said that his brothers and sisters were getting targeted, that they had left the area in which the Applicant had been living with them and attending school (Bik Village) and that they had moved to the centre of Logar (Transcript Affidavit, pp 9, 22);
b)At [38], the IAA stated:
Not only did the Applicant and his siblings continue to attend school, the Applicant never made mention of them taking particular precautions in this regard
c)The above finding by the IAA was erroneous in that the Applicant had, clearly, mentioned precautions that his siblings took in relation to attending school namely that they had moved to the centre of Logar, away from the area in which they had, previously, been living (Transcript Affidavit, pp 9, 22);
d)In relation to the precautions taken by himself, the Applicant told the Delegate that his mother would just let him and his siblings go to school and come back, because she was in fear of them getting kidnapped by terrorist groups (Transcript Affidavit p 12);
e)The IAA had made a jurisdictional error through failing to take into account critically material or dispositive evidence or by failing to adjudicate on the existence of an important integer of a claim made by the Applicant: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121.
The First Respondent’s Response to Ground 3
The First Respondent submitted, in response to Ground 3, that:
a)The IAA was aware that the Applicant’s family had moved;
b)The point or focus of paragraph 38 of the IAA’s reasons was a consideration of the Applicant’s claim that, prior to him leaving Afghanistan, he and his siblings had been at risk of kidnap, extortion or otherwise from the Taliban and that after he had left Afghanistan, his siblings were at risk of kidnap, extortion or otherwise from the Taliban. This was said, by the Applicant, to be an ongoing and continuing risk. That is, the risk was said to have continued in Logar, where the Applicant’s siblings continued to attend school;
c)The IAA’s consideration (at paragraph 38) was directed to understanding the risk, if any, which the Applicant or his siblings faced, or face, from the Taliban. Although the IAA was aware that the Applicant’s family had moved, the point being considered was that the siblings were not conducting themselves (and the Applicant had not conducted, himself) in a way which was consistent with a threat of being targeted by the Taliban;
d)Where that threat was said to have existed before and after the Applicant’s family had moved to Logar, it was not then surprising that the IAA did not refer to the fact of the relocation at this specific part of the reasons; and
e)The reference to the Applicant not making any mention of them taking particular precautions in this regard (emphasis added) had to be considered in terms of the lack of precautions being taken in terms of them attending school other than simply the changing of schools from a school at Bik to a school in the centre of Logar, as was considered by the IAA. The Court accepts that the reference to “in this regard” was a reflection of the IAA’s determination as being linked to the lack of any other precautionary changes (emphasis added). The Court is satisfied that there was no error identified.
The Court, therefore, accepts the submissions as set out in paragraph 39 above and concludes that there is no merit to Ground 3.
The Applicant’s submissions in relation to Ground 4
The Applicant made the following submissions in relation to Ground 4 of his Amended Application:
a)This ground is raised in consideration of the differing authority in the Federal Court of Australia and the Federal Circuit Court of Australia on the question as to whether family separation on removal from Australia can give rise to a claim within the ambit of the complementary protection provisions of the Act. These authorities were discussed in CAC19 v Minister for Home Affairs & Anor [2019] FCCA 2570, per Judge Riethmuller, at [5]-[13];
b)There is a point of law involved in these cases which would benefit from a judgment from a Full Court of the Federal Court of Australia to clarify the law with respect to this aspect of the legislation: per Judge Riethmuller in CAC19, at [11]. An appeal has been lodged from Judge Riethmuller’s decision in GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201, wherein it is expected that this point of law will be resolved. The appeal matter number is VID835/2019, commenced on 9 August 2019;
c)In the words of Judge Riethmuller in CAC19, in the present matter, the IAA approached the matter on the basis that separation of family members could not fall within the meaning of ‘significant harm’ for s.36(2)(aa) of the Act. If that is incorrect, the IAA did not consider an integer of the Applicant’s claim and the decision would have to be remitted to be determined, again. If that is correct, it matters not what the details of this aspect of the claim are as it would be outside the ambit of s.36(2)(aa) of the Act;
d)On the facts of the present matter, it would appear that this Court is bound to follow SZRSN v Minister for Immigration and Citizenship [2013] FCA 751, in which case this ground would fail. Nevertheless, it is submitted that it is appropriate for the Applicant to raise this ground in these proceedings so that the Federal Court of Australia is seized with jurisdiction to deal with it in any appeal that may be lodged.
The First Respondent’s Response to Ground 4
The First Respondent submitted, in response to Ground 4, that:
a)The Applicant, effectively, seeks to reserve an opportunity to commence an appeal in these proceedings in the event that an appeal in unrelated proceedings is resolved in that appellant’s favour; and
b)The issue concerns the proper application of s.36(2)(aa) of the Act and children who are citizens of, and resident in, Australia. The Applicant’s submissions acknowledge that there is binding authority against the Applicant, on this point.
The Court accepts that the Applicant’s partner is an Australian citizen and that any child of the parties’ relationship would fall for determination within the binding authority, as conceded by the Applicant, which was contrary to his asserted ground.
The Applicant addressed the Court on the remaining grounds in terms of his original application, if leave was not granted. No submissions were made referrable to the claim that incorrect country information had been relied upon by the IAA. No other matter was advanced other than the matters referred to above in terms of jurisdictional error. The Applicant did, however, address the claim that the IAA had made an error which had infected its decision, in terms of paragraph 10 of its reasons, where it had stated:
I accept that the Applicant is a Sunni Pashtun….
The Applicant conceded, however, that there were a number of references in the decision of the IAA at paragraphs 1, 34, 35, 36, 37 and 59 which, correctly, describe the Applicant as a “Sunni Tajik”. The Applicant could point to no reference in the reasoning of the IAA which related to its incorrect reference to the Applicant as a Sunni Pashtun. The Court accepts the submission of the First Respondent that this was an inconsequential typographical error made on one (1) occasion in the decision record and did not evidence a misapprehension of the Applicant’s ethnicity or any inconsistencies in the assessment of the Applicant’s case. The Court was referred to the decision of Justice Moshinsky in Bhangu v Minister for Immigration and Border Protection [2017] FCA 108 where it was submitted that a Tribunal had not fallen into jurisdictional error because of a mere typographical error in its decision. His Honour in that case, stated:
31. This is not a case where a single word, eg “not”, has been inadvertently omitted. Rather, this is a situation where, within the one set of reasons, the decision-maker has set out two contradictory findings on the central issue to be determined.
32 It is not possible to establish how it is that the Reasons came to include two contradictory findings on the main issue. It is possible that a mistake occurred in a process of ‘cutting and pasting’ (cf SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146 at [19]-[20] per Siopis, Perram and Davies JJ). In any event, the position is that the Reasons contain two inconsistent findings
….
35. The contradictory findings at [26] and [27] of the Reasons, taken together with the matters referred to at [33]-[34] above, indicate serious problems in the reasoning process adopted by the Tribunal. They indicate that the Tribunal fell into error by identifying the wrong issue, asking itself the wrong question, ignoring relevant material or relying on irrelevant material: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179. In these circumstances, the Tribunal exceeded its authority.
The Court is of the view that this case can be clearly distinguished from that of Bhangu given that there were no contradictory findings made by the IAA.
The Court has also had regard to the principles referred to by Justice Greenwood in SZIFI v Ministers for Immigration and Multicultural & Indigenous Affairs [2007] FCA 63 where an error as to the description of an applicant must go to suggest that the deliberative process going to the merits of the applicant’s case was infused with notions which are erroneous and irrelevant to that case, so as to suggest that the Tribunal (in that matter) may have had in mind facts, circumstances and considerations referrable to other cases. That was not the case here. The Court, further, accepts that the IAA was clearly aware that the Applicant was Tajik and assessed his claims, accordingly. No error is established with respect to this ground.
Conclusion
Accordingly, the Court is of the view that no jurisdictional error has been established and the Applicant’s Amended Application must, therefore, be dismissed.
The First Respondent sought costs. While the First Respondent’s written submissions sought costs in the sum of $5,000.00, Ms Taggart indicated that she, simply, sought that costs be reserved, save for the sum of $500.00, as identified in paragraph 29 above. The Court will order the Applicant pay the First Respondent’s costs of $500.00 in respect of the leave question and will reserve the balance of the First Respondent’s costs for further determination. The parties will have leave to file written submissions in respect of that matter. The Court will determine the issue of costs on the papers unless the parties wish to be heard orally.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 22 November 2019
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