BBO17 v Minister for Immigration
[2018] FCCA 2870
•16 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2870 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to further amend application to include a further ground addressing [94] of the Authority’s decision concerning the reasonableness of relocation – leave granted. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 46A, 473CA, 473DA, pt.7AA |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 Other materials: |
| Applicant: | BBO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 745 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 June 2018 |
| Date of Last Submission: | 18 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M P Nesbeth |
| Solicitors for the Applicant: | Hall & Wilcox |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 745 of 2017
| BBO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Afghanistan who lodged an application for a protection visa on 4 August 2015. On 30 September 2016 that application was refused by a delegate of the Minister for Immigration. A decision to affirm the delegate’s decision was made by the Immigration Assessment Authority on 17 February 2017. The applicant now seeks judicial review of the Authority’s decision.
Background
The applicant arrived in Australia by boat on 27 August 2012. The circumstances of his arrival brought him within the definition of an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth). As the applicant was an unauthorised maritime arrival, he could only make a valid application for a visa once the Minister had exercised his power under s.46A(2) of the Act. On 22 May 2015, the Minister exercised that power and the applicant was permitted to apply for a Safe Haven Enterprise (subclass 790) visa, a type of protection visa. On 4 August 2015, the applicant lodged an application for a protection visa.
While the applicant was a citizen of Afghanistan he had never resided there, was born in Iran and lived in Iran until his departure for Australia. The applicant claimed that he had been illegally residing in Iran since at least 1999 when he claimed his father was ordered to depart Iran as his “blue card” was confiscated. The Afghani citizenship of the applicant’s parents determined his status as an Afghani citizen and he had no right to reside in Iran and so could not be returned to Iran as his receiving country. He claimed to have fled Iran as he was subject to adverse attention and mistreatment by the Iranian authorities.
The applicant, despite having no right to reside in Iran, claimed to fear harm on his return on the basis that he would be detained, beaten and deported to Afghanistan. The applicant’s claims for protection in Afghanistan were made on the basis of the general security situation and violence in the country and his fear of suffering serious and significant harm from those including the Taliban, Pashtuns, citizens of Afghanistan, Islamic State and Hezb-e Islami.
The applicant claimed to fear harm on account of his profile as a Shia Hazara, his membership of a particular social group of young Shia Hazara males without family or tribal support in Afghanistan, not having lived there and having lived in Iran. He further claimed that, having lived in Iran, he may be perceived as wealthy and if he were to be returned he would be imputed with a pro-West opinion and targeted for harm on those bases. Not having been to Afghanistan before, and without any connections, the applicant claimed he would be shunned from local communities, vulnerable to extortion, assault and death and had fears as to his capacity to obtain employment and therefore subsist in that country.
The applicant attended an interview with the delegate on 15 September 2016 and on 30 September 2016 a decision was made to refuse to grant the applicant a protection visa. In the circumstances, the applicant became what is known as a “fast track applicant” and the matter was referred to the Authority pursuant to s.473CA of the Act on 7 October 2016.
On 17 October 2016, the applicant forwarded to the Authority “Submission of new Information to the IAA...” and on 28 October 2016 supplementary submissions concerning his Hazara Shia profile and the reasonableness of relocation to Kabul.
On 3 January 2017, the Authority wrote to the applicant inviting him to make further submissions in relation to up-to-date country information in respect of the safety of certain areas of Afghanistan, namely Mazar-e-Sharif. The applicant responded to that invitation in written submissions dated 17 January 2017, and a migration agent appointed by the applicant on 6 January 2017 also provided submissions to the Authority dated 18 January 2017.
On 17 February 2017 the Authority made a decision to affirm the decision of the delegate.
Authority’s decision
The Authority accepted the applicant was a citizen of Afghanistan and, that that was to be treated as the receiving country. In circumstances where the applicant had no particular link to any part of Afghanistan or “home area” and gave no indication he would seek to return, or relocate to a particular area, the Authority proceeded to consider whether there was a real chance of the applicant being seriously harmed in Kabul, Mazar-e-Sharif or Uruzgan where the applicant had claimed his father was from. The Authority was satisfied that if the applicant were to return to Uruzgan there was more than a remote chance he would be seriously harmed.
The Authority considered the applicant’s claims to fear harm from the Taliban and other insurgent groups in Kabul and Mazar-e-Sharif. It referred to country information concerning violent incidents against Hazara Shia and other religious and ethnic minorities in urban areas such as Kabul and Mazar-e-Sharif. It also accepted that insurgent attacks and security incidents had increased in these areas over recent years. The Authority noted attacks directed against Hazara Shia populations and ethnic and religious based violence were rare, and there was little evidence of direct or deliberate targeting of these minority groups by the Taliban or other insurgent groups. It was satisfied there was no real chance of the applicant being seriously harmed by the Taliban or other insurgent groups on the basis of his religion or ethnicity in Kabul and Mazar-e-Sharif, or that Hazara Shias are systematically targeted for harm on that basis.
The Authority then turned its attention to the applicant’s submissions regarding attacks against the Shia community in Mazar-e-Sharif, the capital of Balkh province. It accepted these attacks were close to Mazar-e-Sharif, considered whether these attacks were indicative of a change in the security situation for Hazara Shias in Afghanistan or a rise in sectarianism. It was not satisfied that insurgent groups alleged to have perpetrated these attacks had the capability to mount anything other than occasional high profile attacks. It was not satisfied that insurgent groups would generate any sectarianism which, in any event, appeared to be fundamentally opposed to by the Taliban, the general population and Afghan security forces and found that the applicant did not face a real chance of being harmed as a result of sectarianism.
The Authority accepted that the applicant was a Hazara Shia who infrequently attended Mosque but did practice the faith and that there was a credible risk posed to Shia Muslims by insurgent groups. The Authority was satisfied that the applicant’s moderate participation would reduce his risk of being harmed by Islamic State or other insurgent groups in Kabul and Mazar-e-Sharif. It was not satisfied the applicant would be targeted upon return to Afghanistan as areas such as Kabul and Mazar-e-Sharif had diverse ethnic and returnee populations, the applicant was not wealthy and there was nothing in the country information to suggest that returnees were perceived as wealthy.
The Authority found that the applicant faced no real chance of being seriously harmed for the reasons claimed if he were to remain within Kabul and Mazar-e-Sharif: [73]. As the real chance of persecution did not relate to all areas of Afghanistan, the applicant did not meet the definition of refugee in s.5H(1) and so did not satisfy sub-s.36(2)(a).
The Authority next considered whether the applicant satisfied the criterion in sub-s.36(2)(aa) of the Act. The Authority noted the qualification to the “real risk threshold”, being s.36(2B), provided that there is taken not to be a real risk that the applicant would suffer significant harm in Afghanistan if it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant would suffer significant harm. On the basis of its earlier findings concerning Mazar-e-Sharif, the Authority found that there was not a real risk of suffering significant harm in that city and then went on to consider whether it would be reasonable for the applicant to relocate to that place.
The Authority referred to the submissions concerning the limited access to food, water, shelter and electricity in Mazar-e-Sharif, the applicant’s lack of connection to anyone in the country and his ability to subsist in those circumstances. The Authority referred to the applicant’s physical capabilities, his previous work as a labourer, his demonstrated resourcefulness and resilience and concluded that, although challenging, this placed him in a better position than many other returnees in being able to earn a livelihood. The Authority then turned its attention to the applicant’s ability to relocate to Mazar-e-Sharif. It accepted that past attacks on roads from Kabul to Mazar-e-Sharif were serious and credible, they were consistent with the broader insecurity of Afghanistan and though information suggests risks in the applicant travelling through Kabul airport, the fact of past attacks did not preclude the possibility of the applicant being able to safely use Kabul airport to access Mazar-e-Sharif.
The Authority was satisfied that the applicant could reasonably locate to an area within Afghanistan where there was no real risk of significant harm and so found that the applicant did not meet the criterion in sub-s.36(2)(aa) and so affirmed the decision of the delegate.
Consideration
There are 5 grounds in the amended application; however, the applicant did not press ground 4. It is necessary to make several preliminary points about the remaining grounds and the submissions made in support of them.
First, although the applicant’s written submissions addressed the issues by reference to what is often called the “internal relocation principle”, it was accepted in oral submissions that any question of relocation must be considered in the statutory context that governed the Authority’s review. It was also accepted that this meant that the “reasonableness” of relocation was not an issue that arose in connection with the criterion in sub-s.36(2)(a) (see sub-s.5J(1)(c)) although it did arise in connection with the criterion in sub-s.36(2)(aa) (see sub-s.36(2B)(a)).
Secondly, grounds 1, 2 and 5 are each based on the contention that the Authority “assumed” that the applicant would not travel outside of Kabul or Mazar-e-Sharif. That contention is incorrect. An assumption in this context is a finding or conclusion arrived at without any proof. The Authority did not assume, but inferred from the material before it that the applicant would not travel outside the two cities if he were to go to Afghanistan. At [69] of its reasons, it explained that its conclusion was based on the fact that the applicant’s links to Uruzgan (which were his only real links at all to Afghanistan) were historic and so that there was no reason for him to travel there, or anywhere else. For that reason, grounds 1, 2 and 5 must be rejected to the extent that they rely on the contention that there was no basis for the Authority’s finding.
At the hearing an issue arose concerning the findings made by the Authority in respect of the applicant’s ability to travel to Mazar-e-Sharif: see [94] of its reasons. The parties were given leave to, and did, file written submissions in relation to that ground as well as in respect of the potential application of [43] – [47] of the judgment of Gordon and Edelman JJ in CRI028 v The Republic of Nauru (2018) 92 ALJR 568. The parties agreed that nothing arose from CRI028; however, the applicant argued that the Authority had fallen into error at [94] of its reasons and sought leave to amend his application to include a ground raising that error. The Minister did not oppose the grant of leave and, in the circumstances, I will grant that leave.
Ground 1 – denial of procedural fairness
The applicant contends in this ground that he was denied procedural fairness as he was not given an opportunity to comment upon whether he would travel outside Kabul and Mazar-e-Sharif. However, in his written submissions[1] the applicant appears to concede that this argument must fail in light of the provisions of pt.7AA of the Act. It may be inferred that the applicant concedes, correctly, that s.473DA operates to exclude from reviews under pt.7AA the common law rules of procedural fairness concerning the natural justice hearing rule. However, his submission goes on to make a different point, namely, that the Authority must exercise its statutory discretions reasonably. That point must be accepted, both as a general proposition (see Minister for Immigration & Citizenship v Li (2013) 249 CLR 332) and in the context of pt.7AA of the Act: Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475.
[1] Applicant’s submissions dated 29 May 2018 at [39].
The relevant discretionary power here is the power to obtain new information: s.473DC. In CRY16 the Full Court found, at [82], that it was legally unreasonable for the Authority to fail to consider whether to obtain new information from the applicant where it knew “that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation”. That is not the case here. First, the delegate made a finding based on the availability of relocation[2] to Kabul. The applicant had the opportunity to make submissions and to give new information to the Authority about that issue. Secondly, the Authority wrote to the applicant about the possibility of “relocation” to Mazar-e-Sharif and invited him to comment on that. The applicant responded to that invitation and gave reasons why relocation to that city would not be reasonable.
[2] This term is used loosely given that the applicant has in fact never been to Afghanistan.
The question of whether the applicant might remain in one or other of those cities was bound up in the issues raised by the delegate’s decision and the Authority’s invitation. In those circumstances it was readily understandable that the Authority did not seek, or consider seeking, even more detailed comments or information about the possibility that the applicant might not leave Kabul or Mazar-e-Sharif.
The first ground is rejected.
Ground 2 – error of law
In this ground the applicant contends that the Authority made an error of law by failing to consider what would in fact occur if the applicant were relocated to Kabul or Mazar-e-Sharif and what impact remaining in Kabul or Mazar-e-Sharif would have on the applicant if he were unable to leave those cities.
The applicant’s written submissions reveal that this contention is based on a misapprehension of the relevant inquiry. The applicant argues[3] that the Authority’s task required it to concentrate on what would in fact happen to the applicant and “not would could or might happen if (he behaved) in a particular way”. The applicant relies for this proposition on the authority of S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. However, as was ultimately established in Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317, the question of whether a person is a refugee, as it was then, can involve an analysis of what a person might reasonably do. The introduction of s.5J since that decision makes that proposition even clearer. Section 5J(3) provides:
[3] Applicant’s submissions dated 29 May 2018 at [31].
(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:
…
(Emphasis in original)
The complementary protection criterion in sub-s.36(2)(aa) also involves an objective element, that is, what a person might reasonably do: sub-s.36(2b)(a).
For those reasons, this ground is based on a misconception and must fail. In any event, contrary to the premise of the ground, the Authority did find what the applicant would do: relevantly, it found that the applicant would remain in either Kabul or Mazar-e-Sharif: [69]. Such a finding does not suggest the error asserted by the applicant: see NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142.
Ground 5 - unreasonableness
In this ground the applicant argues that the Authority’s decision was legally unreasonable and/or illogical. This ground was, in reality, simply another way of expressing the arguments raised in grounds 1 and 2. In light of that, this ground must be rejected for the reasons given in respect of those grounds.
Ground 3 – failure to consider personal circumstances
Ground 3 asserts that the Authority failed to consider the applicant had never lived in Afghanistan and would be confined to living in Kabul or Mazar-e-Sharif in determining that it was reasonable for the applicant to relocate to Kabul and Mazar-e-Sharif as required by s.36(2B). In his written submissions, the applicant goes further and argues that the Authority failed to consider a recent attack in the same region as Mazar-e-Sharif in determining the question of safety in Mazar-e-Sharif and the reasonableness of relocating to that city.
Section 36(2B) of the Act provides that there is no real risk if:
...
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
...
Before dealing directly with the contentions in this ground it is important to note that, in order to amount to a jurisdictional error, an error made by the Authority must be material to its exercise of authority. In other words, the error must have made some difference to the outcome: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at [30]. Thus, the error said to have been made in respect of sub-s.36(2B)(a) of the Act must had made some difference to the outcome.
As its terms suggest, the role of s.36(2B) in the determination of whether the criterion in sub-s.36(2)(aa) is met is to determine, in certain circumstances, that part of that criterion is not met. In particular, if any of the sub-paragraphs in s.36(2B) are met, then there will be no “real risk that the applicant will suffer significant harm” in the relevant country. That means, in turn, that if the Authority finds, for reasons that are not related to s.36(2B) that there is no such real risk, then any determination of the issues in s.36(2B) will have no effect on the decision to be made. For that reason, if an error is made in connection with s.36(2B) but the Authority has, for other reasons, found that there is no real risk of significant harm, the error in relation to s.36(2B) is unlikely to amount to jurisdictional error.
Here, the Authority found, at [94], that the applicant would likely be returned to Kabul first but that there was no real risk of him facing significant harm in Kabul, either for the reasons he claimed he would be harmed (see [80]) or because of the generalised violence in that city: [85]. Those findings meant that the applicant did not satisfy the criterion in sub-s.36(2)(aa) and it was unnecessary for the Authority to make any findings concerning s.36(2B). That much is clear from the Authority’s explanation, at [86], that it only went on to consider the question of relocation in s.36(2B) “to remove any doubt”. For those reasons, any error in the Authority’s consideration of the reasonableness of relocation did not amount to jurisdictional error. As the applicant can only obtain relief if jurisdictional error is established, this ground must be rejected.
Given that conclusion, it is unnecessary to deal with the applicant’s arguments in respect of ground 3. Nevertheless, I will do so briefly.
The applicant’s first point is that the Authority did not consider the impact on the reasonableness of relocation of the fact that the applicant had never been to Afghanistan. The fact that the applicant had never been to Afghanistan was an obvious fact that had been accepted by the Authority at the outset of its reasons. However, it is important to understand how it was relied on by the applicant in connection with the issue of relocation: see AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 at [27].
The point was made by the applicant in his response to the Authority’s invitation to comment on the possibility of relocation to Mazar-e-Sharif. There he said[4]:
… my prospects of subsistence in Mazar-e-Sharif are low, particularly given that I have never been to Afghanistan and have no connection to anyone in Afghanistan.
[4] Exhibit A, page 190.
The Authority referred directly to that claim at [88] of its reasons and went on, at [89], to deal with it.
The applicant’s agent made further claims in this respect in submissions to the Authority. He claimed that the applicant would be exposed to danger because of his lack of familiarity with Afghan culture, tradition and language[5]. That submission was dealt with by the Authority earlier in its reasons, at [67], and carried over into its consideration of the complementary protection criterion: see [80].
[5] Exhibit A p.193.
The second point made by the applicant is that the Authority did not deal with the fact that the applicant would not move out of Kabul or Mazar-e-Sharif. This point appears not to have been dealt with in the applicant’s submissions; however, it must fail because the Tribunal expressly dealt with the point at [69] of its reasons.
The additional point raised by the applicant in his written submissions concerns reports of an explosion outside a mosque in Balkh province, about 20 kilometres from Mazar-e-Sharif (which is the largest city in that province). The applicant argues that the Authority did not consider whether that had any bearing on the assessment of risk of harm in Mazar-e-Sharif or whether it would be reasonable for him to relocate there. Those two questions are not distinct, however, the applicant’s contention is incorrect.
The Authority specifically addressed the question whether that, and other attacks were indicative of a shift in the security situation for Hazara Shia in Afghanistan: [50]. After a detailed analysis of the reports about that issue, it concluded that there was no real chance of sectarianism taking hold in Afghanistan or that there was any real chance of the applicant being harmed on the basis of religion or ethnicity through sectarianism: [54]. That finding was part of the Authority’s reasons for finding that there was no real risk of significant harm in Mazar-e-Sharif: [58], [73], [80].
For those additional reasons I would reject ground 3.
Further amended application – travel to Mazar-e-Sharif
The further ground raised by the applicant in his post-hearing submissions concerns [94] of the Authority’s reasons for decision. The Authority there considered the question of the applicant’s ability to travel from Kabul to Mazar-e-Sharif. As this was part of its consideration of the reasonableness of relocation within the meaning of s.36(2B), for the reasons I have given in respect of ground 3, any error in this aspect of its reasons would not amount to jurisdictional error. Accordingly, although leave is granted to file an amended application to raise the ground, the ground will be rejected.
As with ground 3, I will also deal briefly with the applicant’s arguments in respect of the new ground.
The Authority had information to the effect that Kabul international airport and the roads leading to it were often subject to attack[6]. In light of the fact that the Authority accepted that the applicant would be sent to Kabul, the question arose as to whether he could safely get to Mazar-e-Sharif. The Authority dealt with that question at [94]:
[94] I accept he would likely be returned to Kabul first. I am satisfied that he would be able to access Mazar-e-Sharif by road, however I acknowledge there are risks on these roads, for example in May 2016 the Taliban blocked the road from Kabul to Mazar-e-Sharif and kept it under control, systematically searching for government officials or sympathisers. As put to the applicant, he would be able to access Mazar-e-Sharif by air through the Kabul airport. I accept and acknowledge that there have been security incidents in and around the airport in Kabul, and DFAT travel advice that discusses this in general terms, however more detailed information before me indicates these attacks have been infrequent, and while they are serious and credible, they are consistent with the broader insecurity in the country. I do not accept that past attacks on the airport preclude the possibility of the applicant being able to safely use the airport to access Mazar-e-Sharif.
[6] See Exhibit A at pp.202-203.
The applicant made a number of points about this passage. It is necessary to refer to only one, namely, that the finding that it is possible to safely use the airport in Kabul does not answer the real question. The question to be answered is whether, in all the circumstances, it would be reasonable to relocate to Mazar-e-Sharif, not whether it would be possible to safely do so. It may be possible to cross a busy freeway by foot at night but that hardly means that it is reasonable to do so. The Authority did not properly address the question of relocation in s.36(2B); however, that did not materially affect its decision and so did not amount to jurisdictional error.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 16 November 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
0
8
2