BAY18 v Minister for Home Affairs

[2018] FCCA 2699

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAY18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2699

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether Authority showed apprehended bias in failing to consider the Applicant’s vulnerability, language, ethnic and cultural background and lack of educational and literacy skills – whether Authority failed to consider the safety of the Applicant and his family in travelling on dangerous roads in Afghanistan – Applicant’s grounds raised matters which were not in evidence before the Tribunal or the Court – matters do not arise squarely from the material – no jurisdictional error established.  

Legislation:

Migration Act 1958 (Cth), s.36, 473CB, 473DD, 476

Cases cited:

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942

Applicant: BAY18

First Respondent:  MINISTER FOR HOME AFFAIRS 

Second Respondent:   IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 573 of 2018

Judgment of: Judge Baird

Hearing date: 28 August 2018

Date of Last Submission: 28 August 2018

Delivered at: Sydney

Delivered on: 28 September 2018

REPRESENTATION

Solicitors for the Applicant: Mr Doyle, Morning Star Legal & Migration Services Pty Ltd

Solicitors for the First Respondent: Ms Hooper, Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 573 of 2018

BAY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 6 February 2018.  The Authority affirmed a decision dated 11 April 2017 of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minister for Immigration and Border Protection), not to grant the Applicant a Safe Haven Enterprise (Class XE) Visa (SHEV). 

Background

1. The Applicant is a citizen of Afghanistan.  He is a Shia Muslim of Hazara ethnicity.  He was born in 1974 in Balkh province, Afghanistan. He left Afghanistan for Pakistan in 2005, he claims after his family was threatened by the Hebz-e-Islami Party and the Harakat-e-lnqilab party.

2. The Applicant arrived in Christmas Island on 28 March 2013 as an “unauthorised maritime arrival”.  The Applicant attended an entry interview in person, in the WP Immigration Detention Centre Darwin on 17 May 2013, with an interpreter, having participated in an initial phone interview by phone on 15 May 2013.

3. On 21 January 2016, the Department of Immigration and Border Protection invited the Applicant to apply for a Temporary Protection Visa or a SHEV.  The Applicant lodged his application for a SHEV on 13 May 2016, assisted by a migration agent.  In his application he provided a statutory declaration dated 2 May 2016in which he claims to fear harm in Afghanistan for reasons of his Hazara ethnicity and Shia faith, his imputed political opinion, and as a returnee from the West. 

4. The Applicant attended an interview with the Delegate on 30 March 2017.  On 6 April 2017, the Applicant’s migration agent/representative provided a post‑interview submission to the Delegate in support of the application.  In her submission she addressed “specific questions [raised] during the IMA interview”, and provided a hyperlinked bibliography of 8 items including media articles, comprising some 88 pages when printed (as is evidenced from the court book in evidence).

5. Under cover of letter dated 11 April 2017, the Delegate refused to grant the Applicant a SHEV.  The Delegate rejected the Applicant’s central factual claim, finding not credible his claim to be of adverse interest to the Hezb-e-Islami party, and therefore his claim to have been propositioned to join that party or that the group pursued him through Balkh province.

6. On 18 April 2017, the Delegate’s decision was referred for review by the Authority under Part 7AA of the Act.  On 16 May 2017, the Applicant’s subsequent representative provided the Authority with written submissions, and a statutory declaration by the Applicant dated 15 April 2017.  On 6 February 2018, as I have said, the Authority affirmed the decision of the Delegate not to grant the Applicant the SHEV.

7. On 5 March 2018, the Applicant applied to this Court for judicial review of the Authority’s decision.  By orders made by consent on 2 July 2018, the Applicant was given leave to file and rely on an amended application.  He relies on an amended application dated 25 June 2018, prepared by his current solicitor.

The Applicant’s claims for protection

1. The Applicant’s protection visa claims are predominantly set out in his statutory declaration submitted with his SHEV application.  His claims for protection can be summarised as follows:

   (a) in 2005 Juma Khan Hamdard, a Hezb-e-Islami leader approached the Applicant’s father asking for the Applicant to join in the fight against foreigners.  When the Applicant’s father refused, his family was threatened;

   (b)the Applicant left Afghanistan in 2005 when he was 30 years old;

   (c)the Applicant, his siblings and parents escaped first to Mazar-e-Sharif and then Pakistan.  A member of the Hezb-e-Islami Party stopped them on the way to ask where they were going.  The Applicant stated “my father told him he was taking his son to the doctor”.  Two days later they escaped to Pakistan;

   (d)his house was destroyed by the Hezb-e-Islami party soon after.

2. The Applicant expanded on his claims during his interview with the Delegate:

   (a)the Hezb-e-Islami (HIG) came to his family home and asked his father to provide manpower for their destruction and spying activities.  His father did not agree to the demands;

   (b)one night their home was attacked and his mother’s paternal uncle was killed;

   (c)the next day, the HIG found out that the Applicant was still alive.  Shortly after this, the Applicant claimed he was attacked while travelling to work on a motorcycle with his uncle, and his uncle was shot;

   (d)while the Applicant was staying in Mazar-e-Sharif on his way to Pakistan, some people told them their house had been looted and they assumed the house was destroyed;

   (e)in 2010, the Applicant returned to Afghanistan for one or two weeks to obtain a driver’s licence which he needed to continue to work in Pakistan.  He made sure not to attract unnecessary attention to himself for fear of being detained by HIG or the Taliban.  He claimed the presence of foreign troops ensured relative safety in Kabul.

The Authority’s decision

1. The Authority had regard to the material given by the Secretary under s.473CB of the Act. The Authority noted he had received 2 submissions from the Applicant’s representative: the first, a legal submission and the second, a statement from the Applicant clarifying aspects of his claims and responding to his concerns with the Delegate’s assessment.

2. To the extent that these documents referred to claims and information before the Delegate, the Authority was satisfied it was not new information. 

3. The Applicant’s representative’s legal submission contained reference to a Guardian article from 22 April 2017 regarding a major attack in Mazar‑e‑Sharif and “an uncited quote from a paper by Professor William Maley”.  The legal representative expressed concern about the Delegate’s reliance on country information from 2015 and 2016 about security in Mazar‑e‑Sharif and Afghanistan.  The Authority accepted the information was new information, which was not, and could not, have been provided to the Minister before the Delegate made her decision.  The Authority continued to find, however, “the information is of limited detail and specific relevance”. 

4. In contrast, the Authority had regard to new country reports which are footnoted as through the Authority’s decision, namely, to two 2017 country information reports on Afghanistan released by DFAT, and to the European Asylum Support Office (EASO) updated security assessment for Afghanistan dated December 2017 which included detailed analysis of the Applicant’s home region in Balkh Province (See at [8]).  The Authority referred to those reports as “accounting for the current security situation in Afghanistan and provides analysis of those developments”.  It stated “I consider this information addresses the representative’s concerns”.  Whilst at [5], the Authority says that it is “not satisfied there are exceptional circumstances to justify consideration of this new information”, it is apparent that the Authority was there referring to the representative’s references to the Guardian article and uncited quote.

5. In terms of the Applicant’s statement to the Authority (in the form of a statutory declaration), new information included in his statement was that he did not travel with his father when they left his home, but that he left on foot and was given a ride on a motorcycle.  He also sought to clarify that it was his brother who was in the car when they went through the HIG checkpoint.  The Applicant names the person who targeted his family for the first time.  He also claimed that all 4 of the Hazara families living in the area have left due to violent attacks from the Pashtuns. 

6. The Authority found that this information was historical and was not satisfied that it was information which was not, and could not, have been provided to the Minister before the Delegate made her decision.  The Authority also expressed concerns about the credibility of this new information, saying (at [7]):

   The [A]pplicant specifically confirmed during the visa interview, through the clarification of the Delegate and the interpreter, that it was him who his father claimed was sick when going through the HIG checkpoint.  He did not previously claim to have left his home area separately on foot or by motorcycle; his evidence always indicated he travelled with his family.  The [A]pplicant has previously claimed not to have any contact with the Hazara families in his home area or suggested that all the other Hazara families had left the area, or that his family were the last to leave.  I consider this claim inconsistent with his earlier evidence.  In terms of his reference to Juma Khan Hamdard, I am prepared to accept this person is a member of HIG, but I am concerned why his name was not raised previously, particularly given the recently claimed prominence of his role in the murder of his uncles.  The [A]pplicant has been ably represented throughout this process, and it was within his control to advance these claims in full.  I also note he provided a lengthy post-interview submission to address the concerns of the Delegate expressed during the visa interview”

   The Authority did not consider the information pursuant to s.473DD of the Act.

7. At [9] the Authority summarised the Applicant’s claims.  They are as I have set out above at [9] and [10], and that he could not live or relocate safely outside his home area in Afghanistan due to his specific profile and in terms of generalised violence in the country.

8. At [12] the Authority accepted that the Applicant was a Shia Hazara from a town in Balkh Province, a national of Afghanistan, and that while he lived in Pakistan for several years and worked for one year in Iran, he had no formal status in those countries and he has no right to enter or reside in either country. 

9. The Authority then first turned to the Applicant’s claims related to his profile with HIG.  At [13] and [14] of the decision, the Authority sets out the Applicant’s claims in his written statement accompanying his SHEV application.  At [15] the Authority sets out the Applicant’s expansion on those claims in his visa interview before the Delegate.  At [16] and [17] the Authority describes that evidence and questions asked by the Delegate and his responses.  At [18] the Authority referred to the Delegate’s questioning about the time the Applicant and his family were stopped by the HIG when fleeing to Mazar‑e‑Sharif. 

10. At [19] the Authority considered the Applicant’s submissions about the Delegate’s concerns.  It accepted that the distinction between whether the Applicant’s house was looted or destroyed is not particularly significant, and that [the insurgent groups] would have had no concern for his uncle had they intended to kill the Applicant.  The Authority stated “I do, however, have concerns about other aspects of his evidence”.  These concerns were then set out in subsequent paragraphs:   

    [20] The [D]elegate in her decision expressed concern that they were able to pass through a HIG checkpoint on their way to Mazar. She considered it highly unlikely that if the [A]pplicant had a profile that was of such adverse interest to HIG that they would attempt to kill him on two separate occasions, he would be permitted to pass through a checkpoint manned by a member of this group because he was ill. In the submission to the IAA, the representative contends that the [D]elegate misunderstands the way in which Hazaras and Pashtuns interact with each other - however, she does not clarify what was misunderstood.

    [21]  I have concerns about his claims that he was a person of interest to HIG and yet he and his family were able to pass through a HIG checkpoint with such an explanation. Had the HIG in his area wanted to kill him, and had attempted to do so twice, I find it implausible they would so freely allow he and his family to travel on to Mazar.

    [22]  A further concern for me is a discrepancy between the [A]pplicant's claims in his protection visa application and the initial evidence given in his arrival interview. In the arrival interview, the [A]pplicant was asked by the interviewing officer whether there were any armed groups, political groups, or religious groups operating in the area he lived. The [A]pplicant said there probably were religious and political [groups] but suggested they were everywhere, in every city. He made no reference to HIG or Harakat-e-lnqilab, the groups which formed the basis of his substantive claims in his visa application and interview.

    [23]  There are a number of other significant omissions and inconsistencies arising from his arrival interview. During the visa interview, the [D]elegate put to the [A]pplicant her concerns. She noted that when asked by the interviewing officer why he left Afghanistan, he referred to the lack of security in the country. When asked if anything happened to him to force him to leave Afghanistan, he said 'no', but noted there had been a burglary at his parents' home. She put to him that this was inconsistent with the later evidence he put forward in his visa application and in this interview before the [A]elegate.

    [24]  There are a number of other significant omissions and inconsistencies arising from his arrival interview. During the visa interview, the [D]elegate put to the [A]pplicant her concerns. She noted that when asked by the interviewing officer why he left Afghanistan, he referred to the lack of security in the country. When asked if anything happened to him to force him to leave Afghanistan, he said 'no', but noted there had been a burglary at his parents' home. She put to him that this was inconsistent with the later evidence he put forward in his visa application and in this interview before the [D]elegate.

    [25]  The [A]pplicant also contended in his post visa interview submission that he was told to give his answers briefly when asked by the interviewing officer why he left Afghanistan. He contends that he answered 'no' to the question of whether anything happened to force him to leave Afghanistan because he thought the interviewing officer meant 'harmed physically'. He contends that he referred to the burglary, and that he wanted to explain the incident that HIG attacked his parents' house to harm him. He contends that confusion arose from the word 'burglary', because what he meant was 'attack' on his parents' house and he thought he would have another opportunity to fully explain his reasons before the visa interview with the [D]elegate.

11. At [26] the Authority states that “the statement of the [Applicant’s] arrival interview and the recording were provided to the [Authority]” and that it has “closely considered that evidence”.  The Authority continues “the interviewing officer did encourage the [A]pplicant to be brief throughout the arrival interviews, particularly so later in the interview when he asked the [A]pplicant questions about why he cannot return to Pakistan - it is in this context he emphatically encouraged the [A]pplicant to be very brief”. 

12. The Authority then (at [27]) refers to the generality of the Applicant’s evidence earlier in the arrival interview and the reiteration later in the interview, by the interviewing officer, again asking the Applicant why he could not go back to Afghanistan.  At [29] the Authority accepted that the Applicant was encouraged to be brief by the interviewing officer, but found that the questions in relation to Afghanistan were not unreasonably rushed.  The Authority stated, “It is clear from the arrival interview evidence that he was given several opportunities to expand on his claims, yet in that context he did not refer to HIG, any threats from HIG or any other armed group, the killing of his uncle in his home, or the attack on him and his uncle while travelling on the motorcycle.  The Applicant only referred to the burglary (looting) as the catalyst for their departure from Afghanistan.  In his later account, the burglary (looting) of his parents’ home occurred after they left the area following the threats from HIG and the murder of his two uncles.  In that context, it would make no sense that he would only refer to the burglary/claim as the reason for his family’s departure from Afghanistan.”

13. At [30] the Authority recites and considers the Applicant’s representative’s submission that unrecorded statements in an entry interview are not to be preferred over later, more thoughtful and detailed evidence (given in the visa interview and the application).  The Authority accepted that the arrival/entry interview is an imperfect process and that, in that context, reasonable allowance should be made for some inconsistency and contradiction in statements, unintended omissions, interpreting errors, and having regard to the focus of the interview, which is not a protection assessment.  The Authority continued “However, I do not accept that it is immaterial to the later assessment of the Applicant’s claims and credibility.”

14. At [31] to [34] the Authority considered the Applicant’s explanations as follows:

    31.    I have considered his explanations for why he did not expressly raise these claims at the arrival interview. He contends that during the visa interview it would have been difficult to expand on his claims given the brief nature of the arrival interview. Based on the information above, I do not accept he was rushed or restricted in giving his evidence to the point where he was unable to articulate these claims. I accept that he would not have been able to put forward these claims in detail, but it was well within the [A]pplicant's control to summarise his claims in a coherent way that was consistent with his subsequent more detailed claims. His submissions do not explain his almost complete omission of his later claims in that interview. I do not find his explanations for why he failed to refer to these claims, even in a summary way, to be plausible or credible when considered against the record of the arrival interview and the other evidence before me.

    32.    I also give weight to his failure to refer expressly to HIG or Harakat-e-lnqilab when asked at the arrival interview whether there were armed or political groups active in his home area. This was a clear opportunity to discuss HIG or any other group active in his area. Instead, he suggested there probably were armed and political groups in his area, because these groups were everywhere. His general answer indicates to me not only that he did not have any direct claims against either group, but that these groups were very likely not active in his home area, or at least in any way that interfered with his family or community.

    33.    Had the [A]pplicant's claims been credible, I consider he could have briefly and unequivocally indicated that armed groups (HIG and/or Harakat-e-lnqilab) were active in his home area, that he was threatened to join HIG and that his family refused, and that two of his uncles were subsequently killed because of their refusal to comply with the request, which prompted them to leave the country.

    34.    In terms of his claim that he thought the question about any specific issues he had faced was meant in a physical sense, I do not consider this to be a plausible explanation. Even if I were to give the [A]pplicant the benefit of the doubt in terms of this response, it contradicts the reality of his later claims that he and his uncle were shot at while riding a motorcycle, resulting in him falling from the bike and the death of his uncle. This was a clear physical attack on the [A]pplicant and would have been an obvious response to the question asked.

1. The Authority had further issues beyond its concerns with the arrival interview:  arising from the Applicant’s return to Afghanistan in 2010 to obtain his Afghan drivers licence.  At [35] the Authority sets out the chronology of the Applicant’s provision of details about his movements, including short transits.  At [36] the Authority observes that it was not “until the discrepancy between the issue date on his licence and his travel dates was put to him that he volunteered that he had returned to Afghanistan for one or two weeks in 2010”.  At [36] the Authority sets out the Applicant’s response.  The Authority concluded that the Applicant had not been consistent or forthright in his evidence about his return to Afghanistan.  The Authority considered that this was a further instance indicating his claims are not credible.  The Authority said “had the Applicant genuinely feared returning to Afghanistan because of the threat from HIG, I do not accept he would have elected to return to Kabul, even for a short period” (at [37]). 

2. At [38], weighing everything previously discussed, the Authority did not accept the claims of active armed political groups active in his home area.  The Authority did not accept as credible the Applicant’s claims as to threats from armed political groups, threats to his family, the killing of his uncles or that he was attacked while riding a motorbike to work.  At [39] the Authority did not accept that the Applicant had a past profile with HIG and did not accept that the Applicant would be imputed with any profile against this group on return to the country.  The Authority found that the Applicant and his family have no history or any actual or imputed profile or political opinion against any political or armed group.

3. As to the Applicant’s claims to religious and ethnic profile, on the basis of the information before the Authority, the Authority was satisfied that the Applicant did not have a high profile nor was there any reason to consider he would have such a profile on return to the country.  The Authority stated that beyond high-risk profiles, there is little evidence to suggest that ordinary low profile Shia Hazaras are targeted on the basis of their religion and/or ethnicity or any other imputed profile by the Taliban or other insurgent and armed groups active in the country, or within Balkh itself. 

4. At [43] the Authority weighed the information before it and was not satisfied that there was any real chance of the Applicant being seriously harmed by the Taliban or other Pashtun or other armed groups active in Balkh Province for the reasons there specified.  At [44] and following, the Authority considered the risk assessment for Shia Hazaras from the rise of Islamic State (ISKP), giving weight to DFAT’s latest assessment, and accepting that Islamic State is a credible threat in major cities like Kabul and Herat and the risks to Shias in these areas must be seen as elevated.  However, having regard to the absence of country information, the absence of any confirmed attacks from ISKP in the area, the isolated instance of other recent attacks against Shias in Balkh, and the Applicant’s otherwise low profile, the Authority found there was not a real chance of the Applicant being seriously harmed in Balkh Province on the basis of his ethnic, religious or any related profile.  The Authority found at [50], weighing all the evidence before it, that there was not a real chance of the Applicant being seriously harmed by the Taliban, ISKP, HIG, Pashtuns, or any other person or armed group, for issues relating to his religion, ethnicity or any related profile, whether in his home area of Balkh, or elsewhere in the country.

5. At [51] and [52] the Authority considered the risks to Shia Hazaras relating to road security.  The Authority then went on to say at [53] – [57]:

   53.    I accept the [A]pplicant would likely be returned to Kabul first. I accept the security situation in Kabul is serious, and there have been high casualty attacks on the Shia Hazara population in the city, perpetrated by ISKP. I accept there are elevated risks for Shia Hazaras in Kabul, however I consider the [A]pplicant's stay in Kabul is likely to be very brief, likely less than a few days, in order to arrange his return to his home area in Balkh. In that context, I consider there to be no real chance or risk of the [A]pplicant being seriously harmed for reasons of his ethnicity, religion or any other profile during his brief stay in Kabul prior to travelling to his home area. In this regard, I also note and accept the [A]pplicant has spent time in Kabul previously, and would have some familiarity with the city. I consider this would aid him in navigating the city safely.

   54.    In returning to Balkh via Kabul, I accept the [A]pplicant would need to travel on roads where there have been security incidents in recent years. I accept DFAT's assessment that Hazaras remain likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, however even that targeting is contingent on the vehicle being stopped in the first instance. In weighing the chance of the [A]pplicant being a victim in such an attack, I give weight to the decline in number of incidents on the roads in recent years, his lack of adverse profile, his experience travelling in Afghanistan, and the infrequency with which the [A]pplicant would need to travel the route between Kabul and Balkh. In that context, I consider the chance of the [A]pplicant being abducted, killed or seriously harmed on the roads during his journey from Kabul to Balkh would be remote.

   55.    Alternatively, I accept the [D]elegate's assessment that the [A]pplicant would be able to access Balkh via air through Mazar-e-Sharif. There is no information before me to indicate the costs of such a flight would be prohibitive or unreasonable. I accept there is insecurity around Kabul Airport, and serious attacks have occasionally occurred in and around this area. However, I consider the chance or risk of the [A]pplicant being harmed in a single journey to Kabul airport to be remote.

   56.    Other than the return trip from Kabul to his home area in Balkh, I consider the [A]pplicant would have few reasons to travel outside of his home area, other than between his home area and the nearby urban area of Mazar-e-Sharif. The [A]pplicant is an experienced construction worker and stonemason, and I consider he could find similar work in his home area. I accept he has no family elsewhere in Afghanistan. I also accept the [A]pplicant has family in Pakistan, and that he would be unable to visit them - principally because he has no right to enter or reside in Pakistan. Nevertheless, I consider the [A]pplicant can bring his family home to Balkh when he has re-established himself there, found work and accommodation and he considers it safe to do so. For clarity, I consider his limited travels on the roads outside of Balkh would be due to the lack of any pull factors outside his home area, and would not involve any modification of his behaviour. I consider it would be reasonable for the [A]pplicant (and later his family) to remain in his home area. (Emphasis added)

   57.    In view of all the information before me, I accept there are risks to Shia Hazaras travelling on the roads in Afghanistan, particularly between Kabul and the Hazarajat, but weighing all the information above, I consider there is only a remote chance, and therefore not a real chance, of the [A]pplicant being abducted or otherwise seriously harmed on the basis of his ethnic, religious or related profile, in returning to his home area from Kabul, or in later travels within his home area. For clarity, I am satisfied he would be able to safely access his home area in Balkh.

6. The Authority then continued to consider claims related to the time outside Afghanistan and generalised violence before concluding that the Applicant does not meet s.36(2)(a) of Act (at [69]), and does not meet s.36(2)(aa) (at [77]).

Grounds of review

1. The Applicant’s grounds of review as set out in his amended application are as follows (each ground being set out in bold, but otherwise, without alteration):

   1. The decision of the Respondent was infected by jurisdictional error on account of apprehended bias.

   i.   The Respondent assessed the applicant to the standard of a western educated standard of communication that uses succinct logical, chronological articulate way of speech.

   ii. The Respondent failed to assess the applicant as a labourer who is illiterate, little education, lacking in logical framework of communication

   iii.     The Respondent failed to properly consider the information presented and erroneously applied that information when it was considered.

   2. The decision of the Respondent was infected by jurisdictional error as the Respondent misconstrued the statutory application of s 473DD of the Migration Act 1958 (Cth) and thereby misconceived the nature of the function which he purported to perform in the circumstances of this particular case.

   i.   The Respondent excluded relevant information provided by the applicant that was related to the security situation at Mazar-e-Sharif.

   ii.      The Respondent included information from DFAT that related to areas of Afghanistan distant from Mazar-e-Sharif

   3. The decision of the Respondent was infected by Jurisdictional error as the Respondent failed to provide natural justice in considering the applicant alone.

   i.   The Respondent failed to consider the safety of the applicant and his family in having to travel through Afghanistan from Pakistan to be reunited despite DFAT warning of dangers to Hazara's travelling on roads.

   ii. The Respondent failed to take into account the fact that the applicants family have not returned to Afghanistan due to safety concerns.

   iii.     The Respondent failed to consider that the applicant had real reasons to use roads to travel in Afghanistan.

Proceedings in this Court

1. The Applicant was represented in this Court by Mr Doyle, solicitor.  Mr Doyle provided written submissions and hyper-links to 3 documents:

   (a) a United Nations High Commissioner for Refugees (UNHCR) “Guidance note of the psychologically vulnerable Applicant in the protection visa assessment process” issued in Canberra in November 2017;

   (b) a report by Professor William Maley, Professor of Diplomacy, Asia-Pacific College of Diplomacy at the Australian National University dated 4 April 2018; and

   (c) the DFAT report “DFAT thematic report – Hazaras in Afghanistan 18 September 2017” to which regard was had by the Authority and which is footnoted in the Authority’s decision. 

2. As to the UNHCR guidance note, it is not apparent that that document was before the Authority or the Delegate and it is not appropriate that I receive it as evidence.  Ms Hooper, for the Minister, submitted that the report was not relevant to a ground of review.  I agree the UNHCR report does not assist me.    

3. Mr Doyle’s reliance on it appears to be asking this Court to engage in merits review. The Authority was obliged by s.473DD of the Act to consider the arrival interview. It was for the Authority to decide what weight to give the arrival interview and to assess the Applicant’s evidence through the stages of his application and his various statements and interviews, and the interview with the Delegate. It is not for this Court by reference to the UNHCR guidance note to engage in merits review.

4. As to Professor Maley’s report, I pointed out to Mr Doyle that the report post‑dated the Authority’s decision by approximately 2 months and post-dated the Delegate’s decision just shy of 12 months.  After I drew Mr Doyle’s attention to the limited reference to any report by Professor Maley in the Applicant’s then representative’s submission to the Authority (which the Authority described as an “uncited quote from a paper from Professor William Maley“ see Authority’s decision at [5]), Mr Doyle properly did not press tender of the document.  Properly, he abandoned ground 2 of the grounds of review.

5. As to the use Mr Doyle invites this Court to make of the DFAT report, Mr Doyle submits that the Authority did not properly consider the DFAT report (when considering the Applicant’s safety and that of his family, for example at [56], and following from [65]).  Mr Doyle submits that the Applicant’s family would have to travel on roads where there is accepted risk to return home to Balkh, and as they would be travelling in a group, they would be more likely to attract attention, and that these risks are set out in the DFAT report.  In substance the Applicant invites this Court to engage in merits review of the Authority’s findings.  It was properly within the Authority’s fact‑finding task to consider the DFAT report and to come to the conclusions it did.  The matters the Authority considered regarding the Applicant’s family at [56] are, and I so find, properly within the Authority’s fact-finding task.  I do not propose to engage in merits review.

Consideration

Ground 1

1. The Applicant asserts that the decision of the Authority was infected by jurisdictional error on account of apprehended bias.  In his oral and written submissions, Mr Doyle submits for the Applicant that the “Assessor“:

   (a)failed to consider that the Applicant is a vulnerable person due to the facts that he had experienced trauma in his home country because of his physical health, mental state, and that having been under tremendous stress he was not able to perform in the interviews on which the Authority’s decision was based; and

   (b)that the Assessor did not consider that because of his language, ethnic and cultural background, his lack of educational and literacy skills and his non-existent understanding of the legal system of Australia the Applicant was unable to answer the questions in a way that would have been beneficial for him.

2. Mr Dolye submits that the questions posed by the “Assessor” (by which I understand Mr Doyle to be referring to the interviewing officer for the Applicant’s arrival or entry interview) were culture-specific and language-specific.  Mr Doyle asserts that the Applicant was told to keep his answers short, not to elaborate, that he was interrupted, required to provide his answers in a logical and chronological manner, and was unable to explain his claims.

3. Any allegation of bias must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Whether the apprehended bias adverted to in ground 1, its particulars, and in Mr Doyle’s submissions, is bias of the Authority, the Delegate or the arrival interviewing officer, there was nothing in the Authority’s decision that indicates either impliedly or expressly that the Authority assessed the Applicant in the manner that a fair-minded lay observer might apprehend would be biased.

4. There is no basis disclosed on the Authority’s record, in any of the documents in the court book, or in the submissions of the Applicant, for any claim that the Authority approached the matter with a closed mind, or did not conduct its review in good faith.  None of the material provides any support for the contention that a fair minded and informed person might reasonably apprehend that the decision-maker, the Authority, might not bring, or has not brought, an impartial mind to bear on the decision. 

5. The Applicant’s claimed illiteracy was a matter raised before the Delegate. The Delegate, noting the observations of the Applicant during the visa interview, and the Applicant’s own evidence of being able to write in Hazaragi/Dari, stated, “Given the Applicant’s proven ability to successfully perform basic mathematical equations and his own admission as to his literacy skills, I cannot be satisfied that the Applicant’s claim to be illiterate is credible”. 

6. Mr Doyle’s oral submissions before me go further than submissions made by the Applicant’s then representative to the Authority.  There is nothing before me to substantiate Mr Doyle’s claims as to the vulnerability of the Applicant, and that the Applicant was denied the opportunity to explain himself.  Mr Doyle’s assertions that the Applicant was restricted, interrupted in his narrative, and under a great deal of stress in his arrival interview are not matters in evidence before me or the Authority.  Factual assertions made by the Applicant with respect to the conduct of the Delegate’s interview, if that is what the assertions refer to, or with respect to the interviewing officer during the arrival interview, are not substantiated by necessary evidence. 

7. The Applicant’s then representative who made submissions to the Authority was provided with the Applicant’s protection visa interview audio recording (that is, the interview with the Delegate), and made submissions by reference to that interview.  No complaint in the nature of the Applicant’s vulnerability as put by Mr Doyle in this Court, was made by the Applicant’s representative to the Authority.  At most, the representative made submissions in relation to the case officer’s assessment of the Applicant’s claim to be illiterate, which submission was to the effect that the case officer’s observation in the interview that the Applicant was able to make a mathematical calculation about his age was made without asking any questions of the Applicant about his actual level of literacy.  The representative submitted that the Applicant reads and writes in a minimal way and refers to his statement that he had no education at all in Afghanistan and did part-time school in Pakistan for people like him who had had no education.

8. As I have set out above, the Authority engaged with the Applicant’s claims and evidence in some detail.  The Authority did not accept all of his claims.  I find it was open on the Authority’s consideration of the evidence before it, and for the reasons it gave, not to accept all of the Applicant’s claims.  The Authority at [30] to [32] was cognisant of, and gave the Applicant allowance for, the circumstances of the arrival/entry interview.  In circumstances where the Authority closely considered the evidence of the arrival interview and the recording, and where the Authority accepted certain aspects of the Applicant’s then representative’s submissions (see at [19]), I do not identify any basis on which it could be said properly that the Authority was infected by apprehended bias.

9. Properly understood it is apparent that ground 1 takes issue with the Authority’s assessment of the Applicant’s credibility, and the weight the Authority gave to the various inconsistencies and other identified concerns in the Applicant’s evidence and claims.  It is apparent that the Authority was concerned with the Applicant’s complete omission to raise his central claims, even in a brief or limited way, despite the opportunities afforded to him to do so, at the arrival interview.  The Authority was able to raise such concerns because it properly considered the Applicant’s evidence variously in the entry interview and the interview before the Delegate, as well as the statutory declarations provided by the Applicant.  No jurisdictional error by the Delegate is established, but even if there were, that does not deprive the Authority of jurisdiction to conduct the Authority’s review:  Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.

10. In conclusion, on ground 1 I find there was no error by the Authority in considering the Applicant’s oral evidence to the Delegate, nor the statement and the recording of the arrival interview.  The particulars to ground 1 do not substantiate the ground, the particulars for the other grounds and the oral and written submissions do not further the matter.  Ground 1 is not made out. 

Ground 2

1. As I have said, the Applicant did not press ground 2 at the hearing.

Ground 3

1. Ground 3 alleges a denial of natural justice.  The Authority’s natural justice obligation are exhaustively codified in Part 7AA of the Act: see DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [62]. The Applicant does not identify any particular breach of those codified obligations. It appears from the particulars and Mr Doyle’s oral submissions that the Applicant asserts an alleged failure by the Authority to consider the Applicant’s safety and that of his family in travelling through Afghanistan: in relation to the Applicant both in travelling to Balkh and thereafter in working in the Balkh Province, and in relation to the Applicant’s family in having to travel as a group through Afghanistan from Pakistan to be reunited.

1. The Authority considered travel risks to the Applicant, including arising from road travel.  From [51] it considered that the Applicant could transit through Kabul to his home area in Balkh without a real chance of harm (see at [53] – [54]), and at [54] it gave weight to various matters.  The Authority, alternatively, accepted the Delegate’s assessment that the Applicant would be able to access Balkh via air through Mazar-e-Sharif (at [55]). 

2. I put to Mr Doyle, and he accepted, that the Authority in accepting the Delegate’s assessment of the ability of the Applicant to travel by air, did not require the Applicant to travel by road.  The Authority found at [56] that the Applicant would otherwise have few reasons to travel outside of his home area.  The Authority referred to the Applicant’s experience as a construction worker and stonemason and considered he could find similar work in his home area.  Contrary to Mr Doyle’s submission, I do not read [56] of the Authority’s decision as requiring the Applicant to travel more broadly for work.  Further, contrary to Mr Doyle’s initial oral submissions, the Authority did not expect the Applicant to bring his family home to Balkh without the preconditions that he re‑establish himself in Balkh, find work and accommodation there, and that he considers it safe to bring his family home (see at [56] and the passage I have emphasised above).

3. The Authority found as a matter of fact that the Applicant had few reasons to travel outside his home area and that his activities “would not involve any modification of his behaviour”.  There do not appear to have been any submissions put to the Authority that it was necessary for the Applicant to travel outside his home area.  I find that the Authority’s factual findings were reasonably open to it on the evidence and addressed the Applicant’s claims as advanced to the Authority.  

4. I am unable to identify that the Applicant advanced any claim to fear serious or significant harm in the course of causing his family to return to Balkh.  No such claim arises squarely on the material before the Authority.  The Authority’s findings were to the effect that upon being returned to Afghanistan the Applicant would either be separated from his family (his family residing in Pakistan and the Applicant having no right to enter or reside in Pakistan), or that the Applicant would be reunited “when…he considers it safe to do so“.  The Applicant’s submissions with respect to ground 3 seek impermissible merits review. 

5. Further, the question for the Authority was the Applicant’s protection claim, that is, the Applicant’s refugee convention claim (s.36(2)(a)) or complementary protection claim (s.36(2)(aa)). As the Applicant’s claims are articulated, an inability of a family to reunite with an applicant does not come within either ss.36(2)(a) or (aa) of the Act. Problems the Applicant’s family might face were they to travel from Pakistan through Afghanistan to Balkh to reunite with the Applicant upon return did not form part of the Applicant’s claims before the Authority.

6. I have concluded that ground 3 is not established.  The Authority did not fall into jurisdictional error. 

7. It follows that neither ground 1 nor ground 3 of the amended application being made out, the application must be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 28 September 2018