Ayi18 v Minister for Immigration

[2018] FCCA 3464

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYI18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3464

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority’s findings were legally unreasonable – whether the DFAT country information taken into account by the Authority was unreliable – no jurisdictional error identified – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DE, 476

First Applicant: AY18

Second Applicant: AYJ18

Third Applicant: AYK18

Fourth Applicant: AYL18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 118 of 2018

Judgment of: Judge Street

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Perth

Delivered on: 27 November 2018

REPRESENTATION

Solicitors for the Applicant: Mr N Draper
Granich Partners

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 118 of 2018

AYI18

First Applicant

AYJ18

Second Applicant

AYK18

Third Applicant

AYL18

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 30 January 2018 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.

2. The applicants were found to be citizens of Afghanistan and their claims were assessed against that country. The first applicant is the father of the third and fourth applicants and the second applicant is his partner and the mother of the third and fourth applicants. 

3. The applicants were found to be Shia Hazaras and claimed to fear harm on that basis from the Pashtun majority, the Taliban and other armed groups. The applicants feared that they would be abducted and killed on return to Afghanistan. The applicants claimed that they are unable to obtain protection from the authorities and would be unable to relocate to any other part of their country.

4. On 4 July 2017, the delegate found the applicants failed to meet the criteria for the grant of the safe haven enterprise visa. 

5. On 7 July 2017, the Authority wrote to the applicants explaining there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction giving the applicants an opportunity to put on new information and submissions. The applicants did put on new information and submissions which were expressly referred to in the Authority’s reasons.

6. The Authority summarised the background to the visa application and had regard to the material referred under s 473CB of the Act. The Authority took into account the submissions insofar as they engaged with the delegate’s decision.

7. The Authority found that there were exceptional circumstances to justify taking into account new information, being the bank statements of the first name applicant.

8. The Authority also found there were exceptional circumstances to take into account country information consistent with s 473DE(3)(a) of the Act. 

9. The Authority referred to the submissions requesting the exercise of a discretion under s 473DC(3) of the Act to invite them to attend a hearing and noted that neither the applicants nor the representative had any specified new claims or information that was not considered by the delegate, and accordingly, taking into account the statutory regime declined to exercise the power to invite the applicants to an interview or to give further information.

10. The Authority was also not persuaded that it was appropriate to invite the applicants to comment or give further information under s 473DC of the Act insofar as making findings that differed from those of the delegate, having found that the applicants have had the opportunity to address the relevant issues.

11. The Authority summarised the applicants’ claims and evidence. The Authority found the first applicant was born in a particular place in the Nili District of the Daykundi Province.  The Authority found the second, third and fourth applicants have ancestral and ethnic ties to the same area. The Authority was satisfied that the Daykundi Province was the applicant’s home and where they would return to live in Afghanistan, and found there is no chance or risk of them facing serious or significant harm there.

12. The Authority found the applicants continue to have relatives living in Afghanistan. The Authority referred to the family having left Afghanistan when the first applicant was young and referred to enmity between the Hazaras and Pashtuns and found the first applicant had significantly overstated the risks to his father and the absence of protection mechanisms available to his father in relation to those matters.

13. The Authority found it implausible that the first applicant could have found out about the abduction on roads where the first applicant’s family had no familial or other connections.

14. In relation to the alleged abduction of the first applicant’s brother, the Authority was not satisfied and did not accept the first applicant’s brother was abducted, tortured or killed by AR’s family or any Pashtun or Taliban group connected to AR’s family. The Authority was not satisfied the first applicant’s brother was otherwise abducted or harmed when he returned to Afghanistan. 

15. The Authority found there is no real chance of the first applicant being seriously harmed by AR’s family, or any person or group associated with AR’s family, whether in connection to a dispute because of AR’s death through Pashtunwali, a blood feud or any other reason. The Authority was not satisfied that s 5J(1)(b) of the Act is met in relation to these claims.

16. The Authority referred to the first applicant’s claims to fear harm based on their religious and ethnic profile.  The Authority found that it did not accept the claims as they pertained to the first applicant’s father and brother, but did accept the first applicant and his family are from Daykundi.

17. The Authority referred to the claim that the applicants would be at risk of harm from the Taliban, Pashtuns and other persons. The Authority referred to country information not indicating that Shia Hazaras are facing systematic serious harm or other persecutory conduct in Daykundi or elsewhere in Afghanistan, whether by the Taliban, Pashtuns or other armed groups for reasons of their religion, ethnicity or related profile. It was in those circumstances, the Authority was satisfied the applicants have no such profile in respect of persons associated with the government, military and security forces and the Authority found there is no reason to consider the applicants would have such a profile on return to the country.

18. The Authority was not satisfied there is any real chance of the applicants being seriously harmed by Taliban or other insurgent groups active in Daykundi Province on the basis of their religion, ethnic and/or any related profile.

19. Whilst the Authority accepted the applicants may face some societal or official discrimination in areas where Hazaras are not in the majority, the Authority found it would not be high level and would be infrequent.  The Authority considered that such discrimination would not prevent the applicants from finding work schooling and accommodation. The Authority found the applicants would be returning to a Hazara dominant province, Daykundi, and in that context, the chance or risk of discrimination for reasons of their ethnicity, religion or related profile is likely to be even more remote.

20. The Authority found there is not a real chance of the applicants being seriously harmed by the Taliban, ISKP, Pashtuns or any other persons or groups for reasons relating to their religion, ethnicity, or related profile, whether in their home area of Daykundi, or elsewhere in the country.

21. The Authority turned to the issue of the assessment of the risk of harm faced by Shia Hazaras in respect of road security. The Authority referred to country information in relation to the Daykundi Province and security and insurgent attacks. The Authority referred to the DFAT Country Information report that suggests while Daykundi Province remains largely secure, continued insurgency has affected the surrounding provinces. The Authority referred to DFAT having assessed that transportation between the Hazarajat and major cities is far from secure. The Authority referred to the southern areas of Daykundi Province bordering a particular province tend to be less secure than the rest of the Daykundi Province. The Authority noted that DFAT nonetheless assessed that Daykundi Province continues to remain safer for Hazaras than most other parts of Afghanistan. The Authority referred to insurgent attacks tending to target government and international interests rather than being ethnically motivated. 

22. The Authority referred to country information from DFAT in relation to Shia Hazaras having been targeted on the roads. The Authority referred to the 2017 DFAT Country Information Report which sated that people of all ethnic groups were vulnerable to attacks on the roads and found that the primary motivations for these abductions, including taking of hostages, are to target those with connections to the government or international community. The Authority noted that the country information supported the proposition that ethnicity is rarely the primary motivating factor in these incidents. The Authority referred to abduction while travelling by road as being a risk for Afghans of all ethnicities and referred to a decline in the number of incidents. The Authority also referred to an assessment that Harazas travelling in and out of Hazarajat are particularly at risk. 

23. The Authority accepted the applicants would likely be returned to Kabul first. The Authority accepted the security situation in Kabul is serious and there had been high casualty attacks on the Shia Hazara population in the city perpetrated by the ISKP. Notwithstanding this country information, the Authority accepted that there are elevated risks for Shia Hazaras in Kabul, the Authority nonetheless found that the applicants’ stay in Kabul is likely to be very brief and likely less than a few days in order to arrange their travel to Daykundi. It was in that context, that the Authority found there is no real chance or risk of the applicants being seriously harmed for reasons of their ethnicity, religion or any other profile during their brief stay in Kabul prior to travelling to their home area. The Authority also took into account that the applicants had spent some time previously in Kabul and would have some familiarity with the city. The Authority also took into account that the applicant previously arranged travel between Herat and Kabul and between Kabul and Daykundi. 

24. The Authority referred to the applicants having to travel on roads where there had been security issues in recent years from Kabul to Daykundi.  The Authority referred to DFAT country information in relation to abductions or violence if a vehicle carrying a mix of ethnic groups and is stopped. The Authority referred to weighing the chance of the applicants being victims of such an attack and giving weight to the decline in the number of incidents on the roads in and around Hazarajat, as well as taking into account the lack of the applicants’ adverse profile, their past experience travelling on the roads and the infrequency with which the applicants would need to travel the route between Kabul and Daykundi. The Authority considered the chance of the applicants being abducted or seriously harmed on the roads during their short transit to Daykundi would be remote.

25. The Authority was not satisfied the applicants had other reasons of health, work, education, or family to travel in and out of Daykundi to Kabul, or outside Hazarajat, with any frequency. The Authority considered it reasonable for the first applicant and his family to remain in his home area, where they have existing family relationships, where the two young boys could access schooling, and where the Authority was satisfied the family could find work and accommodation through family and tribal links. 

26. The Authority considered the chance of the applicants being harmed in a single journey from the Kabul airport to be remote. The Authority considered there is only a remote chance of the applicants being abducted or otherwise seriously harmed on the basis of their ethnic, religious or related profile, in returning to their home area from Kabul or in later travels within the home area. The Authority was satisfied the applicants would be able to safely access their home area in Daykundi. 

27. The Authority was not satisfied there is a real chance of the applicants being seriously harmed on the basis that they are returnees from the West, that they applied for asylum in Australia or on the basis of any related profile. 

28. The Authority found there is no real chance of the applicants being seriously harmed in generalised and insurgent violence on their return to the country. The Authority found that the chance of the applicants being harmed by generalised violence was remote and found that s 5J(1)(a) and s 5J(4)(a) of the Act would not be satisfied.

29. The Authority found the applicants did not meet the definition of refugee in s 5H(1) of the Act and that the applicants did not meet the criterion in s 36(2)(a) of the Act.

30. The Authority was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being returned to Afghanistan from Australia there is a real risk the applicants will suffer significant harm. The Authority found the applicants did not meet the criterion in s 36(2)(aa) of the Act and affirmed the decision under review. 

The grounds

1. The two grounds in the application are as follows:

   1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the Applicant does not have a well-founded fear of persecution.

   Particulars

   (a) The Authority misdirected itself in concluding that the First, Second, Third and Fourth Applicants, of Hazara ethnicity and a Shi'a Muslim, do not face a real chance of serious harm for reasons of ethnicity, religion and as a returnee from Australia if they return to Afghanistan, in particular to Daikundi province (Miramar), when the Authority found that the Applicant faces a real chance of serious harm on his return to Daikundi, which conclusion fails to reasonably address or lead to the reasonable conclusion that the Applicant could reasonably be expected to return to Daikundi, where evidence of violence, insecurity due to political instability in Daikundi does not reasonably lead to a conclusion that the Applicant does not have a well-founded fear that there is a real chance of serious harm for reasons of his religion and ethnicity.

   Particulars

   (i) DFAT assesses that there has been a decline in security across Afghanistan, including Daikundi;

   (ii) Daikundi is a volatile province with a high number of security incidents;

   (iii) DFAT finds that:

   1. No part of Afghanistan can be considered free from conflict related violence;

   2. Ethnic tensions exist throughout the country and can result in sporadic violence;

   3. The security situation for Hazaras is fluid;

   4. In the current environment, people from all ethnic groups are at risk of violence from anti-government forces;

   5. There is limited economic and employment opportunity in Hazarajat (of which Daikundi is a part of), the economic infrastructure is severely underdeveloped and is heavily dependent on agriculture which is highly vulnerable to droughts and floods and there are difficulties in reclaiming land and property, with land· ownership being difficult to establish.

   (b) The Tribunal, having had regard to the country and personal information before it, unreasonably and illogically concluded that Afghanistan is the Second, Third and Fourth Applicants Receiving Country.

   Particulars

   (i) Section 5(1) of the Migration Act states the Applicants Receiving Country is to be determined solely by the law of the relevant country (receiving country) or a country in which the Applicant had habitual residence.

   (ii) The Authority found the Second and Third Applicants were born in Iran and the Fourth Applicant was born in Australia;

   (iii) There is no evidence before the Authority upon which it can rely in finding the Second, Third and Fourth Applicants:

   (a) have ancestral and ethnic ties to Daikundi; or,

   (b) are a national/citizen of Afghanistan.

   (iv) The Applicant has never been a habitual resident of Afghanistan.

2. On 8 May 2018, this Court made orders directing the applicants to file submissions in support of the grounds in the application. The only submissions that were put on, were submissions that addressed ground 1A. No submissions were developed other than referring to the content of ground 1B in the submissions themselves. This was not compliant with the Court’s orders.

3. Ordinarily the Court would preclude the party from advancing an argument where there has been noncompliance with the Court’s orders in relation to the requirement to put on submissions. Nonetheless, in the circumstances of the present case, the Court was willing for the ground identified to be addressed based on the particulars that were formulated. The Court did not permit the applicant to develop any other argument in the circumstances where there had been no compliance with the Court’s order. 

Ground 1A

1. In relation to Ground 1A, Mr Draper of counsel contended that the Authority’s findings in relation to the requirements of the Refugees Convention and complementary protection regarding the applicants returning to the Daykundi Province was legally unreasonable. Mr Draper contended that the finding made by the Authority in relation to the country information, that there is not a real chance of the applicants being seriously harmed by the Taliban or other insurgent groups active on Daykundi Province on the basis of religious, ethnic and/or any related profile at the conclusion of paragraph 53, was legally unreasonable.

2. Mr Draper contended that the finding in paragraph 70, that the chance of risk to the applicants being harmed in a single journey to the Kabul airport to be remote, was legally unreasonable. Mr Draper also submitted that the conclusion in paragraph 71, that there is only a remote chance but not a real chance of the applicants being abducted or otherwise seriously harmed on the basis of their ethnic, religious or related profile in returning to their home area from Kabul and that they would be able to safely access their home area in Daykundi was legally unreasonable.

3. Mr Draper also contended the Authority’s observation in the first sentence of paragraph 52 that, with limited exceptions, the country information does not indicate that Shia Hazaras are facing systematic serious harm or other persecutory conduct in Daykundi or elsewhere in Afghanistan, whether by the Taliban, Pashtuns or other armed groups for reasons of their religion or ethnicity or any related profiles was legally unreasonable.

4. The ground in support of this argument of legal unreasonableness in substance reflect an analysis of the Authority’s reasons referring to accepting insurgent attacks occurring against the persons associated with the government, military or security forces. Mr Draper, when pressed, acknowledged the applicants had no such profile. 

1. The ground was also developed by reference to the Authority’s finding in relation to the scale of attacks referred to in the Authority’s reasons and referred in the delegate’s findings that were different to those of the Authority’s in respect of assessing Daykundi. None of the matters just identified support any basis to find that the Authority’s reasons and the findings in respect of the paragraphs referred to were not open to the Authority or identify any basis upon them which could be said that the Authority’s conclusions lack an evident and intelligible justification.

2. The Authority identified country information and it was a matter for the Authority to determine what weight to give to country information. Mr Draper referred to other country information, a report dated 8 February 2016 and in particular, sections of that report, as well as a DFAT Report dated 18 September 2017. The existence of other country information identifying issues of threats to Hazaras and the security situation in Afghanistan does not of itself, give rise to there being any legal unreasonableness in the conclusions drawn by the Authority from the country information referred to by the Authority.

3. There was no proposition advanced that the country information referred to by the Authority had been inaccurately or incorrectly identified by the Authority. The kernel of the argument developed by Mr Draper was in substance, to contend that the security situation in Afghanistan was such that the applicants could not return there. The substance of the argument was in essence, to invite the Court to engage in impermissible merits review.

4. Mr Draper submitted that the Authority should not have found that the applicant’s want of profile gives rise to them being less exposed to the risk of significant harm. Mr Draper’s argument in that regard is in substance, inviting the Court to engage in merits review. Mr Draper contended that the conclusions reached were unreasonable, given what were said to be increasing attacks and instability.

5. The Authority referred to country information as summarised above and made findings that were open to the Authority. There is no substance in the contention advanced that the Authority’s conclusions in the paragraphs referred to, were not conclusions to which a reasonable decision-maker could come. Mr Draper also contended at a very high level, that the country information was said to be unreliable and that it was contradictory. When required by the Court to specify what it was that was said to be country information that was unreliable, the Court was taken to the DFAT country information assessment taken into account by the Authority in paragraph 53.

6. There is no basis identified upon which it could be said that the DFAT country information was unreliable. The fact that there is other country information that may be different, does not give rise to the country information being one in which the Authority either had to identify the other country information or that gives rise to any substance in the contention that the country information was contradictory, nor is there substance in the proposition that it was contradictory and from the same source. It was a matter for the Authority to determine, in the applicant’s circumstances, whether the applicants met the criteria, taking into account the country information which the Authority accepted.

7. Paragraph 70 was also the subject of the argument of unreliable country information. Paragraph 70 refers to the Authority taking into account the country information before the Authority as not indicating serious risk for the applicants within the Hazari-dominated areas, relevantly, in Daykundi. There is no obvious contradictory country information identified in that regard, nor any obvious want of reliability of that country information, nor could it be said that that country information was from the same source. It was not necessary for the Authority to make express reference to each item of country information in the finding referred to in paragraph 70. 

8. I accept the first respondent’s submissions that it is apparent that the Authority considered a wide range of country information including the applicant’s written submissions in finding that there is not a real chance the applicants would face serious harm on return to their home province.  I also accept the proposition that the applicant has overstated in their submissions the nature of the extracts of the material referred to in the Authority’s reasons.

9. Further, it was relevant and permissible for the Authority to take into account the applicants’ profiles in rejecting the applicants’ claims.  The question of accuracy of the country information was a matter for the Authority and not the court. It was a matter for the Authority, not the Court, to evaluate the accuracy and reliability of the country information in the context of the applicants’ claims. 

10. Further, none of the material identified by Mr Draper demonstrated that only one conclusion was open to the Authority in relation to the applicants’ claims. I accept the first respondent’s submissions for the reasons summarised above, that the adverse findings by the Authority were open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 1A is made out.

Ground 1B

1. In relation to ground 1B, no submission had been advanced to the Authority that the second to fourth applicants were not citizens of Afghanistan and no submission had been advanced to the Authority there were some other country that should be their receiving country. It is apparent on the material before the Court that the applicant identified that he had obtained his identity documents and genuine passport, being that from Afghanistan, for his home region, and there is no suggestion that the first applicant is not a citizen of Afghanistan. The second applicant also was identified at page 66 of the Court Book in answer to question 18 as being a citizen of Afghanistan.

2. The Authority made a finding as referred to above in relation to the ancestral and ethnic ties of the second, third and fourth applicants. That was a finding that was open to the Authority on the material before the Authority. The proposition that there was no evidence to support the same is without substance. That was an inference that was open to the Authority in the circumstances of the present case as summarised above. There is no substance in relation to the alleged error advanced in respect of the second to fourth applicants in ground 1B.  No jurisdictional error as alleged in ground 1B is made out. 

Conclusion

1. Accordingly, the application is dismissed. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2018