BBN17 v Minister for Immigration and Border Protection

[2021] FedCFamC2G 305

FEDERAL CIRCUIT AND FAMILYCOURT OF AUSTRALIA

(DIVISION 2)

BBN17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 305

File number(s):	MLG 504 of 2017
Judgment of:	JUDGE RILEY
Date of judgment:	1 December 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – protection visa – Hazara citizen of Afghanistan – whether the Authority’s decision is affected by illogicality or irrationality – whether the Authority’s decision is affected by legal unreasonableness by unreasonably failing to exercise its power to get new information about whether the applicant would no longer be of interest to those who kidnapped him in 2006.
Division	Division 2 General Federal Law
Number of paragraphs:	27
Date of hearing:	18 October 2021
Place:	Melbourne
Counsel for the applicant:	Angel Aleksov
Solicitor for the applicant:	Oboodi Barristers & Solicitors Pty Ltd
Counsel for the first respondent:	Vince Murano
Solicitor for the first respondent:	Australian Government Solicitor
Counsel for the second respondent:	No appearance
Solicitor for the second respondent:	Australian Government Solicitor

ORDERS

MLG 504 of 2017

FEDERAL CIRCUIT AND FAMILYCOURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BBN17
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	1 DECEMBER 2021

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The decision of the Immigration Assessment Authority made on 9 February 2017 in matter number IAA16/00779 be quashed.

3.A writ of mandamus issue to the Immigration Assessment Authority requiring it to determine the applicant’s application according to law.

4.The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,853.

Note:   The form of the order is subject to the entry in the court’s records.

Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a Hazara citizen of Afghanistan. As is very well-known, the US withdrew its troops from Afghanistan on about 31 August 2021. The Taliban regained control of the country at that time. However, it is not possible for this court to take those circumstances into account. This court is only empowered to consider whether the Authority made a jurisdictional error.

   BACKGROUND

3. In his written submissions filed on 4 October 2021, the Minister provided the following background to this matter:

   6.The Applicant is a 43-year-old Hazara citizen of Afghanistan. He arrived in Australia by boat at Christmas Island on 23 September 2012.

   7.On 17 December 2015, the Applicant applied for the Visa. His claims for protection were set out in statutory declarations made by him on 16 October 2013 and on 9 December 2015. The claims stated in the first statutory declaration may be summarised as follows:

   7.1.he was born in the village of Hotapur in Qarabagh district Ghanzi – to get to the Qarabagh bazaar, there is a need to pass through Pashtun villages;

   7.2.when the Taliban came to his area in around 2003, the “Kuchis started to leave their animals on our farms and let them destroy our crops” – this caused a conflict to start between “the village people in our area and Kuchis” and, in 2005, his mother and brother were killed by a land mine when “travelling back from Qarabagh”;

   7.3.“the fighting became very intense and in the beginning of spring of 2006 six people (four Kuchis and two Hazaras) were killed” – this caused the Afghan army to come to the area to try to restore peace;

   7.4.after the arrival of the Afghan army “a lot of outside Taliban came into the area to fight the Afghan army” and “[t]hese people treated … Hazaras very badly and randomly”;

   7.5.in 2006, he was imprisoned by the Taliban – while travelling to the Qarabagh bazaar with “three passengers and a driver” (all of whom were Hazaras), they were stopped, asked questions, and told they had “no right to live [i]n that area … that the land belonged rightfully to Pashtun and we should move” – he was told “personally that they were informed that [he] was involved in the fighting against the Taliban and the Kuchis” which was not true;

   7.6.him, and the other people in the vehicle, were taken to a house where they were beaten – the driver was let go and “went back to our village and told our families what had happened”;

   7.7.later that afternoon, his “father, uncle, some village elders and the Iman of the mosque came and met with the Taliban and negotiated our release” – “[t]hey agreed to release us but said that they did not want to see any of us in the area again”;

   7.8.as a result, he went to Pakistan with his wife and children and, while he was in Pakistan, his father was forced off the farm and moved to Nawabad in Ghazni City – his father no longer works, but his brother lives with his father and supports him;

   7.9.it would not be safe for him where his father and brother live because it is not very far from the farm – “[t]he local Pashtun people from our village and the Taliban who have moved into our area regularly travel to Ghazni city to do business” and if they saw him again he would be killed;

   7.10.he believes he is in danger in Qarabagh because he is “a Hazara who has been identified by the Taliban as someone they don’t want to see in our area again”; and

   7.11.it would not be reasonable for him to live in another part of Afghanistan.

   8.        The Applicant’s second statutory declaration may be summarised as follows:

   8.1.when the Taliban released him and told him to leave, they: (1) threatened to harm him if he did not obey; and (2) blamed him for the death of the Kuchis in the fighting of the spring of 2006;

   8.2.other than his father, brother and aunt, the rest of his family now live in Pakistan or Iran – he cannot live with his father, brother and aunt in Nawabad, Ghazni because he was “specifically warned by the Taliban who believe [he] was involved in killing the Kuchis”; and

   8.3.no place in Afghanistan is safe for him or his family.

   9.On 29 March 2016, the Applicant participated in an interview with the delegate.

   10.On 11 April 2016, the Applicant provided submissions to the delegate which addressed various issues relating to the safety of Hazaras in Afghanistan.

   11.On 30 August 2016, the delegate refused the Visa application and, on 6 September 2016, the matter was referred to the Authority.

   12.On 23 September 2016, the Applicant provided submissions to the Authority which criticised a number of the delegate’s findings.

   13.On 14 October 2016, the Authority wrote to the Applicant and invited him to comment on information relating to the security situation in a number of places in Afghanistan. On 28 October 2016, the Applicant provided submissions in response.

   14.On 2 December 2016, the Authority wrote to the Applicant and: (1) clarified why some of the information contained in its letter dated 14 October 2016 was relevant to his review application; and (2) invited him to comment on further information about the security situation in a number of places in Afghanistan. On 16 December 2016, the Applicant provided submissions in response.

   15.On 9 February 2017, the Authority affirmed the delegate’s decision. In making its decision, the Authority:

   15.1.decided it could consider: (1) the Applicant’s submissions dated 23 September 2016 as they did not amount to “new information”; and (2) updated country information and the responses the Applicant had provided to its letter dated 14 October 2016 and 2 December 2016, as there were exceptional circumstances to justify consideration of that “new information”;

   15.2.accepted that the Applicant “is an Afghani national and that Afghanistan is his receiving country”;

   15.3.in respect of claims relating to the Incident:

   15.3.1.accepted he “was subject to abduction by the local Taliban in the immediate aftermath of the clash between Kuchis and Hazaras and that his release was secured by the local village elders and the mullah of his mosque who vouched for his innocence”; but

   15.3.2.did not accept the Applicant “would continue to be of interest to the Taliban on return due to their belief of his involvement in a local Kuchi conflict, particularly as the incident occurred over 10 years ago and the [A]pplicant has been absent from the area since 2006”;

   15.4.having regard to country information, was satisfied that there “is a real chance that the [A]pplicant would suffer serious harm as a Shia Hazara on surrounding roads leading to Qarabagh if he were to attempt to return there”;

   15.5.in respect of the whether the Applicant faces a real chance of harm in other parts of Afghanistan:

   15.5.1.was not satisfied the Applicant “faces a real chance of harm in Mazar-e-Sharif due to his alleged involvement in a local Kuchi-Hazara conflict in Qarabagh” – in making this finding, the Authority: (1) had regard to its findings set out in paragraph 15.3 above; (2) considered it “remote” that the Taliban would pursue the Applicant in Mazar-e-Sharif; and

   15.5.2.having regard to country information, found that the Applicant would not otherwise be at risk of relevant harm in Mazar-e-Sharif;

   15.6.in assessing the complementary protection criteria: (1) found the Applicant faces a “a real risk of significant harm on the roads to Qarabagh”; (2) was not satisfied that the Applicant faces a real risk of significant harm in Mazar-e-Sharif; and (3) having regard to the Applicant’s personal circumstances, was satisfied that it is reasonable for him to relocate to Mazar-e-Sharif.

   ^{(footnotes omitted)}

   GROUND 1

4. The first ground of review in the application filed on 14 March 2017 and amended on 18 October 2021 is:

   1.        The decision of the Tribunal is affected by illogicality and/or irrationality.

   Particulars

   a.The Tribunal found in paragraph 15 of its reasons that, despite the applicant having been kidnapped by the Taliban in the past, they would not pursue him in Qarabagh because these events occurred ten years ago and the applicant has been absent from that area since that time.

   b.This is illogical and/or irrational because there is no valid reason for the Taliban to have ceased being interested in the applicant simply because of the passage of time.

   c.Further, there was no evidence before the Delegate or the Tribunal to suggest that those who had once been targeted by the Taliban may cease to be targeted simply by the effluxion of time.

   d.This finding affected the Tribunal’s conclusion in paragraph 21 of its reasons, with the result that the illogicality and/or irrationality affected the exercise of jurisdiction.

5. This ground concerns paragraphs 15 and 21 of the Authority’s reasons for decision, which are as follows:

   15.Although I accept that the applicant was the subject of a kidnapping and was released after the intercession of the local elders, I do not accept that he would continue to be of interest to the Taliban on return due to their belief of his involvement in a local Kuchi conflict, particularly as the incident occurred over 10 years ago and the applicant has been absent from the area since 2006.

   …

   21.Given that I do not accept that the applicant would be pursued in Qarabagh due to an incident which occurred over 10 years ago, I consider it remote that the Taliban despite the representative’s claim of the Taliban’s geographical reach and intelligence capabilities, would pursue the applicant in Mazar-e-Sharif, an urban area with a large population of mixed ethnicity where the applicant’s background is not known and which is remote from Qarabagh. I am not satisfied that the applicant faces a real chance of serious harm in Mazar-e-Sharif due to his alleged involvement in a local Kuchi-Hazara conflict in Qarabagh.

6. The applicant argued that the only reason that the Authority gave for concluding that the applicant would no longer be of interest to the Taliban was the effluxion of time. However, the applicant argued, that was illogical, irrational and unreasonable because there is nothing inherent in the passage of time that necessarily affected the level of interest the Taliban has in the applicant. The applicant also noted that the Taliban is notoriously patient, and has famously said that foreign soldiers may have the watches, but the Taliban has the time.

7. In his written submissions filed on 4 October 2021, the Minister said that:

   18.The Authority’s pathway to finding that, on return to Qarabagh, the Applicant would not be of interest to the Taliban because of the [kidnapping in 2006] was as follows:

   18.1.    first, it recited the following country information:

   Although the threat level in Hazara-majority districts including Jaghori was low with these districts enjoying relatively good access to services, security on roads linking Hazara-majority districts of Ghazni to Kabul and other parts of Afghanistan was less safe. DFAT in the same report indicated the travel route through Qarabagh district from Ghazni city to the Hazara-majority Jaghoori district was considered less secure. However local residents with ties to the province and knowledge of the area – including Hazaras – were generally able to travel between Ghazni City and Hazara districts without incident and thousands of vehicles used these roads daily. [citations omitted];

   18.2.second, it found that the Applicant’s claim “that the vehicle he was travelling in was stopped by the Taliban in the Qarabagh district is consistent with country information indicating that the Qarabagh district was considered less secure due to the Taliban presence”;⁵⁵

   18.3.third, it found that the Applicant had been abducted by the local Taliban “in the immediate aftermath of the clash between Kuchis and Hazaras”⁵⁶ in 2006 in circumstances where he claimed the Taliban believed he was involved in the killing of Kuchis;⁵⁷

   18.4.fourth, it found that the Applicant’s release was “secured by the local village elders and the mullah of the mosque who vouched for his innocence”;⁵⁸ and

   18.5.fifth, it did “not accept [the Applicant] would continue to be of interest to the Taliban on return due to their belief of his involvement in a local Kuchi conflict, particularly as the incident occurred over 10 years ago and the [Applicant] has been absent from the area since 2006”^.59

   19.Having regard to the above, on a fair reading of the decision (i.e. a practical and common-sense reading),⁶⁰ it is plain the Authority permissibly reasoned as follows:

   19.1.although the country information stated Hazaras “were generally able to travel between Ghazni City and Hazara districts without incident”, it accepted that the Applicant had been abducted by the Taliban in circumstances where: (1) there were heightened tensions in the area because of the killing of Kuchis in 2006; and (2) the Taliban had suspected him of involvement in those killings; and

   19.2.as over 10 years had passed since the killings, in 2017 (i.e. when the Authority made its decision), the Applicant would not be returning to Qarabagh in circumstances where there were heightened tensions associated with the killings in 2006 – i.e. against the backdrop of country information saying that “the threat level in Hazara-majority districts including Jaghori was low”,⁶¹ the Authority made implied findings that:

   19.2.1.tensions in Qarabagh (being a Hazara-majority area) because of the killings of Kuchis in 2006 would have dissipated by 2017;

   19.2.2.for that reason, Hazaras believed to have been involved in the killings of Kuchis in 2006 would longer be of interest to the Taliban in Qarabagh in 2017; and

   19.2.3.any risk faced by the Applicant was in the specific context of the “aftermath” of the killings of Kuchis in 2006 – that risk did not exist at the time the Authority made its decision as the “aftermath” had passed.

   :  CB 298, [14].

   :  CB 298, [14].

   :  CB 297, [11].

   :  CB 298, [15].

   :  CB 298, [15].

   :Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 – 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

   :  CB 298, [13].

8. The applicant accepted the accuracy of paragraph 18 of the Minister’s written submissions, but took issue with paragraph 19. The applicant argued that the “implied findings” mentioned by the Minister were not implied findings at all, but an impermissible and unjustified reconstruction of the Authority’s reasons for decision.

9. More particularly, the applicant argued that the Minister’s claim that tensions had dissipated between 2006 and 2017 was not supported by the Authority’s actual reasons at paragraphs 16 and 17, where it said:

   16.Country information also indicates Ghazni is one of the most volatile provinces in Afghanistan in terms of attacks on defence forces, international forces and civilians due to the activities of the Taliban and other insurgent groups present in Pashtun majority districts, which therefore have high levels of insecurity and are unsafe. Roads linking Hazara-dominated areas in Ghazni with Kabul also suffer from a high level of insecurity. United Nations Assistance Mission in Afghanistan (UNAMA) noted that AGEs abducted at least 97 members of the Hazara community in the first half of 2015 and all but one incident took place in areas of mixed Hazara and non-Hazara communities including in Ghazni province. Motives for the abductions varied, and included financial gain, intimidation, hostage exchange, suspicion of being members of Afghan national security forces, and in some cases motives were unknown. DFAT also cites the kidnapping of 31 people in February 2015 who were almost all Hazaras travelling on buses through Zabul province and reports several incidents of Hazaras being kidnapped in Ghazni province in the second half of 2015 including a group of 7 Hazaras who were kidnapped and killed. While DFAT assesses that ethnicity is rarely the primary motivating factor in these incidents, it can be a contributing factor, in some circumstances. DFAT also assesses that Hazaras travelling by road between Kabul and the Hazarajat face a greater risk than other ethnic groups and if a bus is stopped in these areas with a mixture of ethnic groups on board, ethnic Hazaras are more likely to be selected for kidnapping or violence.

   17.Although Hazara areas of Ghazni are considered safe, I accept that in order for the applicant to return to Qarabagh, Ghazni province he would be required to travel by road between Kabul and the Hazarajat which DFAT has described as being of greater risk for Hazaras. I also note that the applicant is from a village which is in Qarabagh district and is in close proximity to Pashtun areas where there is a strong Taliban presence. Whilst DFAT in September 2016 indicated that Hazarajat was not highlighted as an area of particular concern in relation to conflict-related abductions in the first half of 2016, is EASO in November 2016 indicated that security in Ghazni is fragile and AGEs pose a major challenge. Qarabagh was also reported to have suffered heavy clashes and to be insecure. UNHCR in March 2016 also referred to security concerns in areas surrounding the Jaghori district and in particular the road that connects the main highway Kabul - Ghazni - Kandahar and Jaghori district, passing through Qarabagh centre and Qarabagh district, which is considered a Taliban stronghold. Given the fragility and fluidity of the security situation in Ghazni, and DFAT reports of the Taliban, other anti-government groups and criminal elements targeting the national highway and secondary roads, as well as roads linking Hazara-dominated areas in Ghazni with Kabul also suffering from a high level of insecurity, I am satisfied that there is a real chance that the applicant would suffer serious harm as a Shia Hazara on surrounding roads leading to Qarabagh if he were to attempt to return there.

   (footnotes omitted)

1. I accept the applicant’s submissions on this ground. The passage of time alone is not enough to provide a logical, rational and reasonable basis for concluding that the Taliban would no longer be interested in the applicant, particularly in circumstances where the Taliban has a notoriously long memory.

2. I do not accept that it is open to read the Authority’s reasons for decision as including the implied findings nominated by the Minister. While it is true that the Authority accepted in paragraph 14 of its reasons for decision that the applicant was kidnapped by the Taliban in the “immediate aftermath” of the Kuchi conflict, the Authority did not expressly find that the tensions created by that or other conflicts had dissipated. Paragraphs 16 and 17 of the Authority’s reasons for decision was to the effect that tensions between Hazaras and the Taliban were continuing in 2017.

3. This ground has been made out. The Authority’s decision must be set aside.

   GROUND 2

4. The second ground of review in the application filed on 14 March 2017 and amended on 18 October 2021 is:

   The decision of the IAA is affected by legal unreasonableness, in that the IAA unreasonably failed to consider exercising, or unreasonably failed to exercise, the power to get new information from the applicant in relation to the findings at IAA Reasons [15], that the applicant would not still be of interest to those who kidnapped him in 2006.

   Particulars

   a.The delegate accepted the applicant’s claims to having been persecuted in the past by the Taliban including by reference to the incident where he was specifically targeted by being kidnapped, and did not suggest that there was not a real chance of this kind of persecution occurring again.

   b.The applicant was entitled to assume that this was not a live issue in the review (cf, paragraphs 15 and 21 of the Tribunal’s reasons) unless it was drawn to his attention.

   c.The Tribunal did not draw to his attention this issue, and thereby deprived the applicant of legal unreasonableness.

5. In his oral submissions, the applicant clarified this ground, saying that he did not submit that the Authority unreasonably failed to consider exercising the power to get new information, because the Authority did in fact seek new information from the applicant. However, the applicant argued that the Authority unreasonably failed to exercise its power to get new information from the applicant regarding whether the applicant would still be of interest to those who kidnapped him in 2006.

6. The applicant submitted that the delegate did not doubt that the applicant had a continuing profile in his home region.

7. The applicant noted that the Authority, by letter dated 14 October 2016, invited the applicant to:

   (a)provide information about why it would not be reasonable for him to relocate to somewhere in Afghanistan other than his home area; and

   (b)comment on information that Mazar e Sharif was relatively safe for Hazaras and had a growing economy.

8. The applicant noted that he responded to the Authority’s invitation by stating, in effect, that he had a continuing profile with the Taliban. 

9. The applicant argued that, contrary to his expectation, derived from the delegate’s reasons for decision, the Authority did not accept that the applicant had a continuing profile with the Taliban: see paragraph 15 of the Authority’s reasons for decision.

10. The Minister submitted that it was simply not true that the delegate “did not doubt” that the applicant had a continuing profile with the Taliban.

11. I accept the Minister’s submission on this point. The delegate accepted, at paragraph 56 of her reasons for decision, that the applicant had been captured by the Taliban at a checkpoint, attacked and then released. The delegate expressly found in paragraph 102 of her reasons for decision that, based on the applicant’s own statement, he had no profile in Kabul. The delegate did not deal further with the applicant’s profile with the Taliban. Rather, the delegate assessed the matter on the basis of the applicant’s Hazara ethnicity. The delegate accepted that Hazaras were persecuted in Afghanistan, but considered that the applicant, as a Hazara, could reasonably relocate to Kabul.

12. In these circumstances, I am not persuaded that the delegate “did not doubt” that the applicant had a continuing profile with the Taliban. On the contrary, the delegate’s express reasons were to the effect that the applicant did not have a continuing profile with the Taliban, at least in Kabul. Leaving aside the situation in Kabul, there is nothing to suggest that the delegate thought that the applicant had a continuing profile with the Taliban. If the delegate had thought that, it is likely that the delegate would have dealt with the ramifications of the applicant having a continuing profile with the Taliban. The fact that the delegate did not do so suggests that the delegate considered that, once the applicant was released in 2006, he ceased to be of interest to the Taliban, except as a Hazara.

13. Moreover, as pointed out by the Minister, the Authority in fact asked the applicant to say why he could not relocate to Mazar e Sharif and the applicant gave his reasons. His adviser said at page 2 of his letter dated 28 October 2016 that:

    … he could not live safety (sic) anywhere in Afghanistan due to his ethnicity and religion and because he in (sic) has been identified by the Taliban as their enemy. He instructs that the Taliban have complex intelligence networks throughout Afghanistan and even in an area where Hazaras are the ethnic majority he would be at risk as there are Hazaras that sell information or act as spies for the Taliban in every community.

14. The Authority considered that response in paragraph 21 of its reasons for decision, which is as follows:

    Given that I do not accept that the applicant would be pursued in Qarabagh due to an incident which occurred over 10 years ago, I consider it remote that the Taliban despite the representative’s claim of the Taliban’s geographical reach and intelligence capabilities, would pursue the applicant in Mazar-e-Sharif, an urban area with a large population of mixed ethnicity where the applicant’s background is not known and which is remote from Qarabagh. I am not satisfied that the applicant faces a real chance of serious harm in Mazar-e-Sharif due to his alleged involvement in a local Kuchi-Hazara conflict in Qarabagh.

15. While it is true that the Authority did not invite the applicant to give information specifically about why he would be pursued by the Taliban because of the reasons that led to his kidnapping in 2006, the Authority asked the applicant to provide information about the broader topic of why it would not be reasonable for the applicant to relocate to a place in Pakistan other than the places where he particularly claimed to fear harm. That request subsumed the narrower question that the applicant says the Authority should have enquired into.

16. The applicant provided the information that he wished in his response dated 28 October 2016, which was to the effect that he had been identified as the enemy of the Taliban, and that they had spies everywhere. That response does not assume that the Authority accepted that the applicant had a continuing profile with the Taliban. On the contrary, the response assumes that the applicant needed to persuade the Authority of that fact.

17. In my view, ground 2 cannot succeed, because the Authority did in fact exercise its power to get new information about why the applicant could not reasonably relocate to Mazar e Sharif, for example, and that included new information about why the applicant would be pursued by the Taliban in Mazar e Sharif. The applicant clearly understood that at the time that the Authority’s letter dated 14 October 2016 was sent to him.

    CONCLUSION

18. As one of the applicant’s grounds has been successful, the decision of the Authority will be quashed and a writ of mandamus will issue. The Minister will be required to pay the applicant’s costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Dated:       1 December 2021