AYY17 v Minister for Immigration
[2017] FCCA 2886
•28 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYY17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2886 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5J(3) |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 Tharmalingam v The Minister for Immigration [1998] FCA 537 |
| Applicant: | AYY17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 211 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 20 November 2017 |
| Date of Last Submission: | 20 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 28 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
The Application filed on 8 March 2017 as amended on 18 October 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 211 of 2017
| AYY17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 8 March 2017, and amended on 18 October 2017, the Applicant, AYY17, asked this Court to judicially review a decision of the Immigration Assessment Authority (“IAA”) which in turn and affirmed a decision of the delegate of the Minister not to grant AYY17 a Safe Haven Enterprise Visa (“SHEV”).
The Applicant was an unauthorised Maritime arrival who came to Australia, by boat, on 13 December 2012. The Applicant is a citizen of Afghanistan. The Applicant claims that he will be harmed by the Taliban if he returns to Afghanistan.
The Claims of the Applicant
The Applicant claimed that he worked in the field of computer technology. He worked for the Afghanistan Independent Electoral Commission (“IEC”) as a computer operator. He claimed that this commission was seen by the Taliban as a foreign intrusion into Afghanistan. He used a pseudonym to obtain work with the IEC so as to not alert anyone as to what he was doing.
Nevertheless, he claims that the Taliban found out that he was working with the IEC and issued a written threat sent to his parents. The letter was apparently signed by the Taliban and stated that they knew that the Applicant was working for, and receiving money from, “non-Muslim foreigners”. This letter demanded that he leave this work. The Applicant ignored the contents of this letter.
The Applicant claims he received a text message on his mobile phone a couple of weeks later. The text message referred to the fact that “we have sent you a letter… And you are continuing to work for non-Muslims in Kabul. We know your address… Don’t worry, we will find you”.
The Applicant claimed that a few days later, one of his work colleagues was killed by the Taliban. The Applicant said he had been talking with his colleague earlier that same day and that this friend had told the Applicant he had also received warnings from the Taliban. The Applicant said that when he heard the news, he stayed home for two weeks because he was too scared to go to work.
After two weeks, the Applicant said that he returned to his job in Kabul. He thought that because Kabul was a large city it would be safer to live and work there. He changed his home address and phone number so that he could not be found by the Taliban.
The Applicant said that for a couple of months there was no trouble and he continued to go to work. He then received a phone call on his new mobile phone from the Taliban. The caller said to him “Do you think that by changing your address and phone number it will really save you from us?”. The Applicant said that he was scared and so he moved to the north of Afghanistan and stayed there for around two weeks. He said that he kept his phone off for a week.
He said that he was contacted by his father who told him that one of his colleagues had been taken by the Taliban. After hearing this, the Applicant decided to leave Afghanistan to seek safety. The Applicant went to India. The Applicant said that he thought things would go back to normal and so after about a month, he then returned to Kabul.
On his return, he decided to get married and after a few months, he returned to his job at the IEC as he had been told things were back to normal. He worked there for a month before being told that there was no longer a job available to him.
The Applicant said that he then took a new job at Kabul airport working for a private company that provided satellite cabling for foreigners (Dish TV). A month after he started working there, the Applicant said that he received a phone call. The Applicant said that the caller congratulated him on his new job and said words to the effect that “they now know that he cannot be Muslin because he is providing satellite television and things for foreigners”. The caller told the Applicant that “they had already decided what they were going to do with him”. The caller passed the phone to another male who told the Applicant that if he really wanted to stay alive, he should come and join them for Jihad.
The Applicant said that he was in shock and was fearful for his life. He said that he realised that it didn’t matter where he lived or worked, that the Taliban would find him. The Applicant said that his father advised him that there was nowhere safe in Afghanistan and suggested he go back to India.
The Applicant said that he and his wife left Afghanistan and went to Delhi to seek safety. The Applicant said that he realised he couldn’t apply for a permanent visa in India so he returned to Afghanistan with his wife. He contacted people smugglers and arranged to leave Afghanistan.
He said that after he left Afghanistan, his father was called several times by the Taliban. They told his father that, as the Applicant had left, the father should now give up a younger son to join Jihad. The Applicant said that his father left and went to Dubai and made arrangements for the rest of the family to move there temporarily to stay safe.
The Applicant fears that he will be harmed or killed by the Taliban if he goes back to Afghanistan simply because he worked for the IEC and for Dish TV. He said that he has been labelled as a non-Muslim and if forced to return to Afghanistan he will be unable to avoid harm or to be protected. Because the Applicant has lived in a Western country, this would confirm to the Taliban that their belief that the Applicant was now a non-Muslim is correct and that they will conclude that he has converted to Christianity.
He said that he will be subject to the questioning, detention, arrest and interrogation by corrupt government officials if he is returned to Afghanistan. He claims that the government of Afghanistan is very weak. There is poor security and a lack of “rule of law”. The government, police and military in Afghanistan cannot protect themselves so they are unable to protect their citizens.
He said that there are indiscriminate killings in Afghanistan every day and the government is helpless to do anything. And he said that he cannot relocate to another part of Afghanistan to avoid harm as there is nowhere safe for him to live in Afghanistan.
The Adjudication of the IAA
The IAA accepted that the Applicant had worked for the IEC and Dish TV. However, it did not accept that the Taliban had threatened him. It came to this view in light of a number of concerns it had with the Applicant’s claims and evidence.
These included that:
a)The Applicant had claimed that, after receiving serious threats from the Taliban while being employed at the IEC, he went to Ghazni. There, he met a friend who was in a similar position to him. That friend was killed by the Taliban while the applicant was in Ghazni. Despite this, the Applicant returned to Kabul only two weeks after having left there. The IAA found it difficult to accept that, if the Applicant considered the threats from the Taliban to be genuine and he was very scared, he would return to Kabul so soon (particularly in light of his friend’s death).
b)The Applicant claimed that, after changing jobs (to Dish TV 1) and taking a number of steps to conceal his whereabouts from the Taliban (i.e. changing address and telephone number), the Taliban still located him and threatened him—after which the Applicant hid in Mazar and Dehli for six weeks before returning to Kabul. The IAA considered it to be implausible that the Applicant would return to Kabul within a six week period if he had really been threatened—particularly having regard to:
i)the seriousness of the threats;
ii)his knowledge of the risks of harm faced by persons working for government/international organisations;
iii)the Taliban’s demonstrated ability to find him despite his change of telephone number and address; and the fact that his friend had been killed by the Taliban and another friend/colleague had recently been abducted.
c)The Applicant had given materially inconsistent (and irreconcilable) evidence about the chronology of all the relevant events: including in respect of his evidence about his travel, residence and work timelines.
The IAA then went on to consider whether the Applicant was potentially exposed to any real risk of harm at the hands of the Taliban solely on account of his occupations while in Afghanistan. In resolving this issue, the IAA noted that there was Country Information about the existence of risk to persons who worked in international and government organisations, but considered that, given the lapse of time since the Applicant had left Afghanistan, he would only have a limited adverse profile.
The IAA then went on to consider whether the Applicant faced a real risk of harm on the basis of his ethnicity and religion; that is, as a Tajik Sunni.
In resolving this issue, the IAA looked at the Country Information. This indicated that, in Kabul, the city’s size and diversity meant that there were large communities of almost all ethnic, linguistic and religious backgrounds in the city. This resulted in religious/ethnic based violence being rare. Moreover, the Country Information indicated that persons of Tajik Sunni ethnicity/religion formed a significant percentage of the Kabul population and, in fact, there was no evidence before the IAA to suggest that Tajiks or Sunnis in Kabul were targeted for serious harm.
The IAA then turned to consider whether the Applicant—as a returnee from a western country—would be harmed.
The Country Information indicated that returnees from Western countries did potentially face some risk on account of being seen to be associated with the international community—but that, in cases where steps were taken by persons to conceal their association with the country they returned from, their risk profile was no different to other people in Afghanistan with a similar ethnic or religious profile.
The IAA then went on to find that it was not satisfied that the Applicant was at a real risk of harm as a returnee from a Western country on two independent and alternative bases:
a)first, because the Applicant could take steps to conceal his connection to Australia (such as not openly discussing his time in Australia or otherwise taking steps to protect any documentation that linked him to Australia); and
b)secondly, because “in any event” the IAA did not consider that a person returning to Kabul with the Applicant’s characteristics (Tajik Sunni) was a real risk of being targeted for harm for having returned from a western country. It came to this conclusion having regard to the situation in Kabul generally (that is, a city which “ha[d] a diverse ethnic population and [which had] seen unprecedented population growth from returnees and IDPs over the years”).
Grounds of this Application
The Grounds set out in the Amended Application are as follows:
“1. The IAA erred in failing to consider and address an issue which clearly arose on the material before it including its own findings, that being whether the applicant would be able to find work utilising his skillset in computing and technology without disclosing his previous employment with the Independent Electoral Commission and Dish TV, and so potentially placing himself at risk.
2. There was no probative evidence to support the IAA’s finding that the applicant would not face a well founded fear of persecution, or a real risk of serious harm, as a returnee from the west in Kabul, because of the size and diversity of the city.
Particulars
(a) The DFAT report of 18 September 2015, relied upon the IAA, stated that returnees from the west faced a similar level of threat to people associated with the Afghan government or the international community, without differentiating between the situation and Kabul and other parts of Afghanistan.
3. The IAA acted in breach of s.5J(3)(b) of the Migration Act.
Particulars
(a) Contrary to the IAA’s finding at paragraph 54 of its decision, requiring or expecting the applicant to modify his behaviour so as not to reveal his time or residence in Australia would be to conceal an innate or immutable characteristic.”
First Ground
This ground is founded upon what the IAA said at paragraphs 43 and 44 of their reasons:
“43. I have found that he was never threated for his role with IEC or Dish. Nevertheless, I accept that his role with the IEC would have carried some risk, as potentially did his role at Dish. I find those risks were likely mitigated by the low profile nature of his role with the IEC (being an internal position) and the short duration of his time with Dish. Having regard to the time that has passed since he worked at both places, I find that any limited adverse profile the applicant may have had in the past would pose no risk or chance of harm to him on return to the country.
44. While I accept his work history, I am satisfied that his employment with both organisations has ceased. There was no suggestion in his evidence that he would return to either role. I am satisfied that as a question of fact, the applicant would not seek similar employment in the future and this would not involve any modification of his behaviour. Alternatively, I am also satisfied he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm on these bases. He is experienced and has a skillset in computing and technology and I am satisfied he could find work and making a living in an industry entirely unrelated or connect to the media, government or international community.”
It is well established that the AAT consider all claims made by an applicant and the essential component integers of that claim. However, as was made clear in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1, the Tribunal is only required to consider such claims where they either are:
a)the subject of a substantial, clearly articulated argument line on established facts; or
b)a claim that clearly emerges from the materials.
It was not suggested that the IAA had any different duty to that of the AAT.
The threshold question is whether the claim (that the Applicant would not be able to find work utilising his skill set without disclosing his previous employment and therefore putting himself at risk) squarely arose from the materials.
The Applicant refers to Tharmalingam v The Minister for Immigration [1998] FCA 537 as authority for the proposition that the present claim did arise from the materials. However, I am of the view that Tharmalingam (Supra), while being a proper statement of law, is a different factual case from the present one. In that case, the Tribunal had made a finding about that Applicant being a “bagman”. Having made that conclusion, the Tribunal was obliged to consider whether that Applicant feared persecution in the future.
The present case is quite different. While the IAA found that the Applicant had been employed by the IEC and Dish TV, it did not find that there had been threats made by the Taliban. The IAA did note that there was a risk in such employment. But the Applicant did not suggest that he might be harmed because he would have to disclose this work history to future prospective employers and did not suggest that he could not obtain employment without disclosing this employment history.
There was no suggestion, or any inference that could be made from the evidence, that any future employers would disclose to the Taliban that the Applicant had previously been employed by the IEC and dish TV.
The claim, that is now being made, is extremely speculative. The IAA made a finding that the Applicant had a role with these organisations that was of “a low profile nature”.
As I remarked during the course of the hearing, it is difficult to imagine any position that involves computer technology that would not have some influence from Western culture; it is difficult to think of an operating system that was not created in the Western world. On the criteria that the Applicant claims that the Taliban have imposed, it would seem that any work in the computer technology field would not be seen in a good light by the Taliban. And there is no evidence to support such an inference.
It seems then that the Applicant is complaining that the IAA did not consider that, in applying for work in a field that would naturally be an anathema to the Taliban, employers who were running such organisations would need to know about the Applicant’s previous employment and that such information would be disclosed to the Taliban and thereby put the Applicant at risk.
Clearly such a scenario does not emerge from the material. This ground therefore fails.
Grounds Two and Three
These grounds must be considered together because the finding of the IAA upon which these grounds are based, was put in the alternative.
At paragraphs 53 to 56, the IAA said this:
“53. There is limited evidence before me indicating risks of Afghans that return to the country after spending time in the west, including Australia. The UNHCR guidelines suggest there are reports of people being targeted by AGEs on the grounds that they had become ‘foreigners’ or that they were spies for a western country. DFAT states that is it aware of occasional reports of returnees from western countries alleging they have been kidnapped or otherwise targeted on the basis of having spent time in a western country, noting examples in the Hazarajat, however it assesses that, in general, returnees from western countries are not specifically targeted on the basis that they have sought asylum or are returnees from the west. DFAT assesses that returnees from western countries, however, face a similar level of risk to other people in Afghanistan who are associated with the government or the international community. People in this situation often take measures to conceal their association, such as not travelling with documents or symbols that may link them to the Afghan government, the international community based in Afghanistan or western countries. DFAT assesses the returnees from western countries who maintain a low profile, such as by taking steps to conceal their association with the country from which they have returned, do not face a significantly higher risk of violence or discrimination than do other people in Afghanistan with a similar ethnic and religious profile.
54. I have found the applicant would no longer have a profile of a person who has worked for the government or the international community. The applicant claims to use Facebook, but apart from that he did not claim to have adopted western mannerisms, dress or speech, or that he feared harm on this basis. Nevertheless, he has a history in Australia and I accept he may have documentation which evidences his connection to Australia.
55. In terms of that potential profile, I am satisfied he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm, for example through not openly discussing his time in Australia, or by taking steps to protect any documentation that may link him to Australia. I find that such steps would have be[sic] reasonable and relatively minor inconveniences. I am satisfied there is nothing in his evidence that suggests he would be unable to, or could not or would not want to take such steps. Viewed together, I am satisfied that if the applicant took these reasonable steps to modify his behaviour, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in anyway y or do any of the things contemplated by s.5J(3)(c)(i-vi).
56. In any event, while I accept there may be risks to returnees with such profiles in Hazarajat, particularly Hazara Shias, I am not has [sic] that in a major urban area like Kabul, which has a diverse ethnic population and have seen unprecedented population growth from returnees and IDPs over the years, that the applicant, as a Tajik Sunni, would face a real chance of being seriously harmed on the basis that he is a returnee from the west, or because he may have sought asylum in Australia, or because of any profile related to those factors.
The IAA has framed its reasoning in the alternative; that is, giving paragraphs 53 to 55 as a reason as to why the IAA was not satisfied that the Applicant faced the prospect of genuine harm upon return to Afghanistan, and having paragraph 56 as an alternate reason for coming to that same conclusion. Ground 2 attacks the alternate reason, whereas ground 3 attacks the initial reason.
It was conceded by the Applicant that both grounds had to succeed for the applicant to be successful in this application.
In looking at ground 3, there needs to be an appreciation of the contents of s.5J(3) of the Act. The sub section reads:-
“3. A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.”
The argument mounted by the Applicant is that the fact that the Applicant has worked for the IEC and Dish TV are immutable characteristics. The fact that the Applicant has lived in Australia since December 2012 is also an immutable characteristic.
This does become a case of statutory interpretation. The fact that anything that any person does in the past is necessarily “immutable” is obvious. However, it could hardly be said that this was the intention of Parliament when this subsection was enacted.
The Parliament has set out a non-exhaustive list of the type of characteristic that would be deemed to be “immutable” in s 5J(3)(c)(i)-(vi). Any addition to that list would have to be ejusdem generis. The IAA has made a finding that the characteristics described above are not characteristics that attract the attention of that subsection.
I cannot see how that finding is an error of law. The fact that the Applicant has worked for those companies and the fact that the Applicant has lived in Australia are not characteristics that are fundamental to the identity or the conscience of the Applicant. If the Applicant were to “conceal” those facts, it would not change the essence of who the Applicant is.
If one looks at the matters in s 5J(3)(c)(ii) and (iv), they involve such characteristics as race, ethnicity, nationality, country of origin and physical, psychological or intellectual disabilities. It is difficult to reconcile that employment history and residential history should be seen as part of that list.
For those reasons, ground 3 fails.
Whilst that means that it is now unnecessary for me to consider ground two, nevertheless, I will do so.
This ground proceeds upon a presumption that the IAA has made a finding that, because of the Country Information it had, the Applicant would not face a risk of being seriously harmed if he were returned to Kabul. The reasoning of the IAA is that Kabul has a diverse ethnic population and has seen unprecedented population growth from returnees.
The Applicant contends that there was no Country Information before the IAA that supported such reasoning and therefore there was no evidence upon which the IAA could have come to that conclusion.
The first point to be noted is that the IAA has not actually made “a finding of fact” in this regard. It was the contention of the Applicant that he would be harmed if he returned to Afghanistan, which includes the capital city of Kabul. The IAA had to be satisfied that there was a real risk of the Applicant suffering serious harm if he were to be returned to Kabul. The IAA was simply “not satisfied” that serious harm would occur to the Applicant in such circumstances.
As this statement was not a statement of concluded fact, it was a statement that did not have to be based upon evidence. This ground would fail on this point alone.
However, having perused all of the material that is in the affidavits of Mr Fisher and Mr Pinder, I am of the view that such a statement was not inconsistent with the evidence before the IAA.
Conclusion
I have not found any jurisdictional error and therefore dismiss this application. I order that the Applicant pay the costs of the Minister fixed in the sum of $7328.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 28 November 2017
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