BCC18 v Minister for Home Affairs
[2020] FCCA 310
•19 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 310 |
| Catchwords: MIGRATION – Application for judicial review – Safe Haven Enterprise Visa (SHEV) – review of decision of Immigration Assessment Authority (IAA) – protection visa – Hazara Shia – whether the IAA failed to consider integers of claims raised – whether the IAA erred by failing to consider both actual and imputed political harm – whether the IAA erred by limiting its consideration by reference to previously suffered harm – whether the IAA’s findings were unreasonable and lacked an ‘evident and intelligible justification’ – s 473DB – whether the IAA failed to consider country information relevant to the findings of the Delegate – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 473CB, 473DB, 476 |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | BCC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 596 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 3 September 2018 |
| Date of Last Submission: | 3 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Chatterjee |
| Solicitors for the Applicant: | Mr J Moyes, D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Ms D Watson, Australian Government Solicitor |
ORDERS
THE COURT:
AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
DISMISSES the application filed 6 March 2018.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 596 of 2018
| BCC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Immigration Assessment Authority, dated 6 February 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (subsequently the Minister for Home Affairs, and now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 28 June 2017, not to grant the Applicant a Safe Haven Enterprise (Class XE) Visa.
Background
The Applicant is a Shia Muslim of Hazara ethnicity from Ghazni Province, Afghanistan.
The Applicant arrived at Christmas Island by boat on 10 February 2013, as an unauthorised maritime arrival. On 3 March 2016, the Delegate invited the Applicant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). On 1 September 2016, the Applicant lodged his application for the Visa, which included the Applicant’s statement in the form of a statutory declaration dated 27 August 2016.
On 8 June 2017, the Applicant attended an interview with the Delegate regarding his application for the Visa. On 28 June 2017, the Applicant’s migration agent, Ms Nahida, provided a post‑interview submission to the Delegate. On the same day, the Delegate refused to grant the Applicant the Visa.
On 4 July 2017, the decision of the Delegate was referred to the Authority for review. On 14 July 2017, the Applicant provided his submissions to the Authority by email. As I have said, on 6 February 2018, the Authority affirmed the decision of the Delegate. On 6 March 2018, the Applicant applied to this Court for judicial review of the Authority’s decision.
Applicant’s protection claims
The Applicant’s claims are set out in his statutory declaration, and his interview with the Delegate (as referred to in that decision). The Applicant claims:
(a)he is a Hazara of Shia Muslim religion born in 1988 in [redacted – the Village], Ghazni Province, in Afghanistan;
(b)his father had a small parcel of land in the Village, and because of issues created by the Pashtuns and Kochis, his father had to rent out their land to other farmers;
(c)he has been a tailor since 13 years of age, first working in a tailor’s shop in Ghazni. From 2001 to 2004 he worked as an assistant tailor in Ghazni city sewing army and police uniforms. In about 2002 or 2004 [dates differ between the statutory declaration and the Delegate’s decision], he started working as a tailor in a factory in Kabul, also sewing army and police uniforms. His father’s health deteriorated, and in 2006 he had to return to Ghazni. He moved back to his Village in Ghazni province. After returning to Ghazni he started to bring unstitched army uniforms from [redacted - Employer A], located in Ghazni Bazazi, and stitch them at home. His family would assist him in sewing (per Delegate’s decision p.4);
(d)his father passed away in 2006. The Applicant became the only breadwinner of the family;
(e)he lost his mother in about 2009. He continued to work as a sub-contractor for Employer A, working from home, but his income was not sufficient to run the household. The Pashtun farmer his father had leased their land to stopped giving him “some ration as rent of our land, as agreed with my father” (statutory declaration at [13]);
(f)he approached the farmer to question about this and the farmer yelled at him. The farmer threatened to kill the Applicant if he returned to him claiming his father’s land. The Applicant stated: “This Pashtun farmer had support of the Taliban and therefore I feared for my life I never spoke of our land” (statutory declaration at [14]);
(g)in about 2011-2012, he was stopped three times by the Taliban while “travelling between [Village] and Ghazni on my way to bring stitching material from [Employer A]”. The Taliban searched him and asked if he worked for the government and the army. Every time he was not carrying any supplies or materials with him. On the third occasion he was travelling from the Village to Ghazni (about 30 minutes travel), the Taliban detained and interrogated him “harshly” and abused him physically asking how come he travelled so often to Ghazni. The Taliban did not believe his claim to just go for grocery and shopping and nothing much, took him to a broken house, hit him and verbally accusing him of working for the Afghani army. He was released that evening, on condition that he should not show up on the roads so often. He walked home, empty handed. Thereafter he sent his wife and nephew to Ghazni to bring supplies from Employer A (statutory declaration at [16]-[18]);
(h)in about mid-2012, the Applicant’s wife told him that two unknown men had come to his house and delivered a letter which identified the Applicant as having provided tailoring services for the Afghani army and police (I refer to the letter variously as a night letter, warning or threatening letter). This was the only letter of this nature that was received. The English translation of the letter (provided with his statutory declaration stated):
“It is being announced that your tailoring work of stitching clothes and uniform for the national army servants and local police is shut down from 31 August 2012 and you have no rights to work. Your work is against the Islamic Sharia (law) and it is in support and cooperation to the government.
In case of overstepping this warning or repeat of your infidel actions your tailoring place will be sat [sic] on fire and you will be arrested and punished according to Sharia Law which is the death penalty to be a lesson for others”;
(i)he feared for his life and took his family to Ghazni city to his father‑in‑law’s house, and escaped to Pakistan. From Pakistan, he fled to Australia with the help of a smuggler.
In his statutory declaration (at [22] – [26]) he attested to his fear that on return he will be seriously harmed and / or killed at the hands of the Taliban who have threatened him, and he also feared harm from other extremist groups in Afghanistan such as ISIS/ Daesh and other insurgents, and the Afghan police and authority do not have the means or ability to protect people like him, the government has discrimination against the Hazaras. He gave as reasons for his fears:
(a)his Shia Muslim religion;
(b)his Hazara ethnicity;
(c)his political opinion: “my real / imputed political opinion will be a reason for the Taliban to harm / mistreat me. I favour anti-Taliban political views”;
(d)his membership of a particular social group, being failed Hazara or Afghani asylum seekers;
(e)his profession: the Taliban had threatened him, as a tailor who sewed army and police uniforms.
The Delegate also records at p.7 of his decision that the Applicant stated:
(a)he fears return to Afghanistan, specifically to his hometown in Ghazni, because the new owner of his father’s small parcel of land would try to harm him;
(b)he fears harm from the Taliban because he does not have certain clothing (including a beard); and
(c)he sends his children to school.
Delegate’s decision
The Delegate was satisfied that the reason of being a Hazara Shia was among the essential and significant reasons for the Applicant’s feared persecution. The Delegate considered the Applicant’s claims and personal profile together with country information. The Delegate was not satisfied that the Applicant is a refugee as defined by s.5H(1) of the Act.
The Delegate recorded that the Applicant “confirmed” he was stopped three times by Taliban members, but was not harmed because he did not have any materials on his person.
The Delegate put to the Applicant during the interview that country information indicates that the Taliban issues many warning letters to people it deems to not be conforming to their ideals. The Delegate there referred to country information published by Ireland Refugee Documentation Centre dated 1 June 2012 (a copy of which was in evidence before me, see below at [31].
The Delegate found that the Applicant did not have “an ongoing adverse profile because of his prior work” (at p.6).
The Delegate did not accept any contention that the Applicant was anyone’s target list (at p.7). The Delegate did not accept that the Applicant would be identified and targeted on return to Afghanistan. The Delegate considered that, given that it had been 5 years since the warning letter (with which the Applicant had complied), this was a significant period of time in the fluid Afghan security environment, particularly in a country with a large, diverse population that is growing. The Delegate was not satisfied that anyone would have maintained knowledge of, or interest in, the Applicant since that time, or would be motivated to track and harm him in relation to his work or for any kind of associated imputed profile. The Delegate found that his current fear of serious harm for reasons of his prior work in the manner described is both speculative and fanciful (Delegate’s decision, at p.7).
The Delegate rejected the Applicant’s claims arising from his past tailoring of army uniforms, and from the alleged threatening letter.
The Delegate acknowledged that there were risks involved in travelling by road from Kabul to Ghazni province, however the Delegate found that the Applicant could avoid harm by relocating to either Kabul or Mazar-e Sharif (Delegate’s decision, at pp.10, 13, 16).
The Delegate was not satisfied that the Applicant would face a real chance or risk of serious harm from any state or non-state agent in Kabul or Mazar-e Sharif on account of his Hazara Shia profile, due to being a returned asylum seeker from a western country or for any other reason. The Delegate was also not satisfied that there was a risk the Applicant would face significant harm as a necessary and foreseeable consequence of being removed to Afghanistan.
The Authority’s decision
The Authority considered material given by the Secretary under s.473CB of the Act, submissions from the Applicant made 14 July 2017, and new information obtained, namely DFAT country information report dated 18 September 2017 about Shia Hazaras in Afghanistan which had been published after the Delegate’s decision: Authority’s Decision at [3]‑[5].
The Authority accepted that the Applicant was a Hazara Shia from Ghazni province. It accepted that the Applicant worked as a tailor in Afghanistan since he was 13 years old, and that during this period he stitched army and police uniforms. The Authority accepted that the Applicant had been stopped by the Taliban on 3 occasions, but did not accept that the Applicant had been questioned and beaten on the third occasion. The Authority was nonetheless willing to accept that the Applicant was stopped on these occasions and questioned and released immediately. The Authority stated at [14] of the Decision:
[14] I accept the applicant worked as a tailor in Afghanistan since he was 13 years old. I accept that during this period he would stitch army and police uniforms and that he would have to travel to and from Ghazni city to deliver the stitched uniforms and collect new material. Given the applicant was travelling to and from Ghazni city for the purposes of delivering his stitching clothing items and picking up more material, I find it highly unlikely that the applicant would not have had any stitching materials on him on the three occasions he was stopped by the Taliban. Nonetheless, I am willing to accept he was stopped on these occasions and questioned and released immediately. I do not accept the applicant was targeted specifically on the basis that he was stitching uniforms for the army or police and I do not accept the Taliban were aware of his occupation. I find the Taliban purely questioned him on the purpose of his travel in a similar manner to them questioned many other people travelling on those roads. I do not accept the applicant faced any harm on these occasions and I do not accept the applicant was held, questioned and beaten on the third occasion of being stopped by the Taliban.
In relation to the Applicant’s claim to have departed Afghanistan on the basis of receiving a threatening letter (the original of which the Applicant claimed was lost, but presented a copy, and accompanying English translation), the Authority said, at [15]-[16]:
[15] The applicant has been consistent about receiving a letter from the Taliban which was delivered by unknown men. During the interview with the delegate the applicant was unable to specify who these men were and what their purpose was. I find it doubtful that if the applicant were of interest to the Taliban on the basis of his occupation, that they would only send a letter, despite the applicant claiming that the Taliban knew where he lived, his travel to and from Ghazni city and where he worked. I find if he was of genuine interest to the Taliban and they genuinely wanted to harm him on the basis of his occupation they would have done so on the three occasions he was stopped while travelling on the road to or from Ghazni city. While I note the applicant has been consistent about receiving this letter and has provided a copy of it, albeit an uncertified copy, I am not willing to accept the applicant received such a letter and this being the basis of his departure from Afghanistan.
[16] I have accepted the applicant was questioned by the Taliban, but I do not accept the applicant was ever threatened by the Taliban prior to his departure from Afghanistan, I am also not satisfied the applicant will face any harm upon return. Recent country information indicates that the Taliban tend to target those who are wealthy or are associated with the government or the international community and common targets for insurgent attacks are government institutions, political figures, the ANDSF, Mission Resolute Support, other security forces, foreign missions and international organisations. The Taliban have also been reported to have the following targets: foreign occupiers especially their permanent military bases, their intelligence and diplomatic centres, as well as government officials and Afghan security forces.
At [18], the Authority noted that the Applicant had travelled to Ghazni city immediately prior to his departure from Afghanistan to his in-law’s house. It also noted that he travelled by road to Pakistan upon his departure without attracting any adverse attention. The Authority continued: “The applicant’s wife, son, niece and nephew continue to reside at the same residence and since the applicant’s departure in 2012, there is no evidence before me to indicate that the Taliban or any other ‘unknown men’ have been in search of the application on the basis of his occupation or any other reason. The Authority was not satisfied that the country information or the Applicant’s personal profile supports his claim that he will be targeted by the Taliban, on return to his home area.
The Authority also considered (at [19]) what would happen if the Applicant were to return to his home area and recommence his employment stitching uniforms. As it had found that the Applicant had not previously faced harm on the basis of his employment stitching uniforms for the army or police, it was satisfied that even if he were chosen to do so, he would not be of interest to the Taliban.
At [20], the Authority referred to country information on the improved road security from his home area (which I note from the Decision at [9], [10], and [11], is in Jaghatu district, also spelt in the materials as ‘Jighatu’ and ‘Gighato’) to Ghazni city and in and around his home area, and was not satisfied that the Applicant would face a real chance of harm if he had to travel for work as he did previously.
At [21], the Authority was not satisfied the Applicant “has a real or imputed political opinion on the basis of his previous occupation and/or if he continues to work in that occupation upon return to his home area which would result in the applicant facing a real chance of any harm in his home area”.
The Authority considered recent country information, noting that DFAT assesses Hazaras travelling to and from the Hazarajat are particularly at risk when travelling by road. The Authority was satisfied however that the Applicant could safely return to his home village from Kabul by catching a commercial flight to the nearby town of Bamiyan, and then travel by road safely to his home area of Jaghatu. It stated at [28]:
Most returnees are returned to Kabul. The applicant would then be expected to travel, by road, to his home area. Given the applicant would be required to travel to the Hazarajat from Kabul, I find that road travel, as a Shia/Hazara may be precarious. However, in March 2016, Kam Air began direct commercial flights between Kabul and Bamiyan and given the applicant has been working while in Australia and stated during the interview with the delegate that he has been financially supporting his family in Afghanistan, I am satisfied he is able to finance this one way flight. While I note the applicant will have to spend a short amount of time in Kabul transiting, country information indicates that the Afghan government retains control of Kabul, major population centres and most key transit routes. I am satisfied that once in Bamiyan, the applicant will be able to travel by road safely to his home area of Jaghatu. DFAT have advised that Hazara populations in the majority areas within the Hazara majority districts are able to move within these areas without facing undue risk. I also note the applicant will be travelling to where his wife and family continue to reside.
After finding that the Applicant would be able to safely return to his home area, the Authority was not satisfied he would face a real chance of any harm on the basis of being a Shia or Hazara. At [29] it found that country information did not support and it did not accept, the Applicant will face a real chance of harm from the Taliban, Islamic State/ Daesh or any other insurgent activity in [Village], Jaghatu district on the basis of his race or religion.
At [32], after observing that the Applicant had resided in Afghanistan until the age of 24, and would be returning to the country with the knowledge of the language, culture and familiarity with his home area and to somewhere his immediate family continues to reside, the Authority was not satisfied the Applicant would be of any concern to the Taliban or any other insurgent group on the basis of residing in Australia, returning as a failed asylum seeker, or as someone who has sought asylum in a western country. The Authority was also not satisfied that the Applicant will face harm on the basis of appearing to be western due to not having a beard or for wearing western clothes.
The Authority turned to the Applicant’s claim before the Delegate that he will be harmed by the Pashtun farmers who have taken his father’s land. At [33], the Authority stated:
In his application for protection, the applicant stated that his father had to rent out their land to other famers due to issues created by Pashtuns and Kuchis. I accept that this may have occurred, however the applicant has not claimed to have previously faced any harm on this basis, nor has he claimed that he will face any harm upon return to Afghanistan on this basis. I am not satisfied there is a real chance the applicant will face any harm on this basis.
At [34], the Authority was not satisfied that the Applicant would face a real chance of harm upon return to Afghanistan on the basis that he sends his children to school. The Authority observed that he had not claimed that any of his child (one young son), or the Applicant’s niece and nephew, who reside with his wife in Afghanistan, and were now past school age, had ever faced harm on the basis of schooling.
The Authority affirmed the Delegate’s decision not to grant the Applicant the Visa.
Grounds of review
The application for judicial review filed in this Court on 6 March 2018 contained 5 grounds of review, 4 of which were pressed by the Applicant at the hearing. The grounds pressed are as follows (without alteration):
1.The Immigration Assessment Authority (Authority) constructively failed to exercise its jurisdiction and thereby fell into jurisdictional error by failing to consider the following of the applicant’s claims and/ or integers of the applicant's claims:
1.1.That the applicant was at risk of serious or significant harm, being the ability to subsist, from a third party which harm that Afghani authorities were incapable or unwilling to protect the applicant from.
Particulars
1.1.1 The applicant claimed to have suffered harm on the basis that his family had been forced to lend their land out to Pashtun/Kuchi farmers; that the Pashtun farmer in possession of the land refused to return the land and threatened the applicant’s life if required to return it; that the Pashtun farmer in possession of the land was supported by the Taliban and for that reason the applicant could not require its return; and that the consequent failure to obtain rent from the land resulted in the applicant having insufficient funds to support his family.
1.1.2 The Authority either omitted to consider the applicant’s claims of past harm on this issue or erroneously misunderstood the applicant’s claims as not raising past harm, and thereby failed to consider the applicant’s claims (Decision Record of the Authority at [33]).
1.2. That the applicant was at risk of serious or significant harm from the Taliban, being harm that the Afghanistan government was incapable or unwilling to protect the applicant from, for reason of the applicant’s actual political opinion being that he held “anti-Taliban political views”.
Particulars
1.2.1.The applicant claimed to be at risk of harm from the Taliban for reason of his “anti-Taliban political views”.
1.2.2.Claims before the Authority (which the Authority accepted) corroborated that the applicant possessed views antithetical to the Taliban in that he had:
1.2.2.1provided tailoring services to the Afghan military and previously police:
1.2.2.2 sent his children to school.
1.2.2.3sought asylum on the basis of fear from the Taliban; and
1.2.2.4shaved his beard. adopted·westernised attitudes and resided in a western country;
1.2.3The Authority erroneously considered the applicant’s claims as to political opinion to be limited to claims of imputed political opinion, arising from his employment as a subcontracted tailor to the Afghani military (Decision Record of the Authority at [21]), and thereby failed to consider his claims of actual political opinion.
2. Further and or in the alternate the Authority constructively failed to exercise its jurisdiction in determining the applicant's claims that he faced a real chance of harm from the Taliban in the future, on the basis that he sends his children to school, by limiting its consideration solely by reference to whether the applicant had previously suffered harm in that regard.
Particulars
2.1. The applicant claimed to fear harm from the Taliban on the basis that he sends his children to school.
2.2. The Authority found that, as neither the applicant's children nor the applicant had suffered any harm on the basis of attending or not attending school, there was not a real chance that the applicant would face harm on return to Afghanistan (Decision Record of the Authority at [34]).
3. Further and or in the alternate, the Authority's findings in respect of the applicant's claims to fear harm from the Taliban by reason of his prior occupation as a sub‑contracted tailor to the Afghani military was unreasonable by reason of the fact that:
3.1. There was no evidence for a material finding of fact critical to the Authority's determination of the issue (that “it was highly unlikely that the applicant would not have had any stitching materials on him on the three occasions he was stopped by the Taliban ... as the applicant was travelling to and from Ghazni city for the purposes of delivering his stitching clothing items...”) [emphasis in the original]; and
3.2. The Authority failed to take into account relevant country information supportive of the applicant’s claims that he received a threatening letter from the Taliban inter alia by reason of his work for the Afghani army in circumstances where the delegate of the First Respondent appeared to accept the applicant's evidence on the issue and the applicant had ·no notice that the matter was seriously in contest.
Particulars
3.3. The applicant claimed to have worked as a sub-contracted tailor to the Afghani military; to have been threatened by the Taliban with death if he was found to be working for the Afghani government or army; to have been detained and beaten by the Taliban for the purposes of ascertaining whether he worked for the Afghani government or army; and to have later received a threatening letter from the Taliban inter alia by reason of his work for the Afghani army;
3.4. The Authority appears to have disbelieved the applicant's claims of having been detained and beaten by the Taliban on the basis that, as ··the applicant was travelling to and from Ghazni city for the purposes of delivering his stitching clothing items and picking up more material ... it was highly unlikely that the applicant would not have had any stitching materials on him on the three occasions he was stopped by the Taliban" (Decision Record of the Authority at [14]);
3.5. There was no evidence before the Authority that the applicant travelled to Ghazni city "for the purposes of delivering his stitching clothing items" (cf. for the purposes of picking up material);
3.6. Further, the applicant claimed to have received an intimidating letter from the Taliban, delivered by two unknown men, being a critical aspect of the applicant's claims resulting as it did in the relocation of his family and his departure from Afghanistan (Decision Record of the Authority at [10]);
3.7.This aspect of the applicant’s claims was disbelieved by the Authority on the basis that it was “doubtful that if the applicant were of interest to the Taliban on the basis of his occupation, that they would only send a letter…” (Decision Record of the Authority at [15]);
3.8.Country information before the Authority (being information cited by and relied upon the delegate of the First Respondent in apparently accepting that the applicant had received such a letter) indicated that “night letters are a well known tactic used by the Taliban to intimidate people ... in the country side such as in Wardak and Ghazni provinces [where] this phenomenon is widespread ...”(Information on the security situation for Afghans working with the American forces in Afghanistan. Information on Afghans receiving warning letters/night letters from the Taliban, Refugee Documentation Centre (Ireland) Legal Aid Board 2012).
4. Further and or in the alternate the Authority fell into jurisdictional error in failing to take into account a relevant consideration, being that country information before the Authority corroborated a critical aspect of the applicant's claims, being that he was threatened by the Taliban by means of an anonymous letter.
Particulars
4.1. The applicant relies on particulars above at 3.6 - 3.8.
Proceeding in this Court
At hearing before me the Applicant was represented by Mr Chatterjee of counsel, and the Minister by Mr Knowles of counsel. With leave, Mr Chatterjee filed in Court and relied on an affidavit of Justin Moyes, solicitor, affirmed 3 September 2018, annexing a copy of the publication by the Refugee Documentation Centre of Ireland dated 12 June 2012 titled “Information on the security situation for Afghans working with the American forces in Afghanistan. Information on Afghans receiving warning letters/night letters from the Taliban” (regarding the practice of the Taliban issuing night letters, and referred to by the Delegate – see above at [11]).
The evidence before me was otherwise contained in the bundle of documents from the Department of Home Affairs, and the Authority’s file, relating to the Applicant’s application for the Visa, and the Decision.
Ground 1
Ground 1 alleges that the Authority failed to exercise its jurisdiction, by failing to consider all, or two integers, of the claims the Applicant had raised, which Mr Chatterjee characterised as:
(a)the ability to subsist - harm arising from the Pashtun farmer who took the Applicant’s father’s land, and that this loss affected the Applicant’s ability to subsist/support his family; and
(b)harm for reason of the Applicant’s actual political opinion, being that he held “anti-Taliban” political views.
(a) Ability to subsist
The Authority referred to the Applicant’s claim regarding the forced rental of land to the Kuchis and Pashtuns at [6], and at [33] was not satisfied that the Applicant would face any harm upon return to Afghanistan on this basis (see above at [27]).
Mr Chatterjee submitted that the material before the Authority made clear that the Applicant’s claims were that he had already suffered harm in that his family had been dispossessed of land and related income by the Pashtun farmer, that this affected his ability to subsist/support his family, or alternatively that this claim arises squarely on the material.
He submitted that the Authority failed to consider the effect on the Applicant of the dispossession, and its ongoing impact, and relied on Htun v Minister for Immigration& Anor (2001) 233 FCR 136; [2001] FCA 1802 at [7]; [42]; AOL15 v Minister for Immigration& Anor [2018] FCA 979 at [12].
In oral submissions Mr Chatterjee submitted that “the ability of the Pashtun farmer to make the threat is contingent on the support of the Taliban against a Shia Hazara.” Mr Chatterjee agreed that the Applicant had said that he approached the farmer to question about the rent, not to reclaim the land, and also that it could be inferred that the farmer’s responsive threat at that time not to return to reclaim the land was made about the time the Applicant’s mother died, in 2009, and before 2011.
Mr Chatterjee contended that the harm arising from the threat of the Pashtun farmers affected his ability to subsist, but in any event the past disposition of land could amount to serious harm.
Mr Knowles for the Minister accepted that the Authority did not refer to the claim of past harm, in so far as there was a claim that there was a threat to the Applicant’s life if he was to seek to reclaim the land. He submitted however, that the Applicant did not indicate that he had sought to reclaim the land after the threat was made, or that he intended to reclaim the land if he returned to Afghanistan.
Mr Knowles submitted that none of the Applicant's statutory declaration, or any other material provided to the Delegate or the Authority, indicated an ongoing fear for this threat. In those circumstances, it was not necessary for the Authority to specifically consider the historical threat: the Applicant did not claim to fear harm as a result of the threat, and there was no evidence that he would be threatened upon return to Afghanistan because there was no suggestion the Applicant would seek to reclaim the land: cf. Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [42]−[43].
Mr Knowles further submitted that the Applicant never articulated a claim that the Applicant faced harm in the sense of a threat to his subsistence. In any event, the Authority made a separate finding that the Applicant could continue to work as a tailor, or alternatively as a renderer on return to Afghanistan (Decision at [20]). His capacity to obtain employment undermined the claim to fear harm on the basis of a threat to his capacity to subsist.
Consideration
The Authority dealt with the general point of threat of harm by reason of the land dispute at [33].
The Authority did not refer to the threat from the Pashtun farmer. It did refer to the forced rental of the Applicant’s family’s land due to issues with the Pashtuns and Kuchis. Having regard to the content of the Applicant’s statutory declaration, and post‑interview submission made to the Delegate, I accept Mr Knowles’ submission that there is no indication that the Applicant had sought to reclaim the land, or would do so.
In those circumstances, and for the reasons that follow, I find that it was not necessary for the Authority to specifically consider the historical threat, and as to the future, there was no suggestion that he would seek to reclaim the land on return (noting also that there was no evidence that he had ever sought to do so, at any time).
The Applicant in his statutory declaration sets out the history of his father’s ownership of a small parcel of land, and forced rental, in a chronological recitation of his circumstances that places that event before the Applicant started working as a tailor, and over a decade before he left Afghanistan. The loss of rental income and the Pashtun farmer’s threat happened about 2 - 3 years before he left Afghanistan (see above at [6 (e) and (f)] and [37]).
As to the submission by Mr Chatterjee that as a consequence of the dispossession of the land / the loss of rent, and its ongoing impact on the ability of the Applicant and his family to subsist, the Applicant had already suffered harm, and was at risk of serious or significant harm, this claim was never articulated, nor do I consider that it is clearly raised on the materials. For the reasons that follow, I reject Mr Chatterjee’s submission that such a claim arose squarely on the face of the materials.
I note the Applicant in his statutory declaration stated that, following his mother’s death in 2009, his income was not sufficient to run the household (see at [6 (e) and (f)] above), and that the Applicant suffered a loss of rent. However, there is no mention by the Applicant that the farmer’s failure to pay rent was the factor, or was a significant factor, that threatened the Applicant’s capacity to subsist. There was no articulation of any connection between an inability to obtain rent and persecutory harm.
Earlier, in his chronological narration of events in the statutory declaration, the Applicant said that soon after the Taliban were toppled by the Americans, his brother disappeared, the family struggled financially, and he had to contribute more, as his father was growing older and less able to work. Thus, concerns about the economic resources of the Applicant and his family were present, on an unrelated basis, from before his father died.
Nowhere later in the statutory declaration, when setting out his fears of harm (see reasons above at [6] and [7]), nor in any written submission, did the Applicant mention an incapacity to subsist, or fear of harm for the reason of inability to obtain rent or loss of his father’s land.
Further, the Applicant stated in his post-interview submission that his work as a tailor making uniforms for the Afghan security forces was a good job (post‑interview submission at section 4(a)), which is inconsistent with any threat to subsist.
I note that in the Decision at [20], the Authority made a separate finding that the Applicant, on return, could continue to work as a tailor, or alternatively, as a renderer, having acquired that alternate skill working in Australia. Such a capacity to obtain employment undermines a claim to fear harm on the basis of a threat to his capacity to subsist arising from loss of rent.
For the above reasons I find that the Applicant did not make any claim that could be characterised as because of discriminatory and persecutory conduct he could no longer obtain rent, and that his inability to obtain that rent amounted to serious (or significant) harm because it threatened his capacity to subsist. Further, the Applicant did not articulate any claim that the Applicant faced harm in the sense of a threat to the Applicant’s subsistence in the event that the farmer continued to fail to pay rent.
(b) Actual political opinion
Mr Chatterjee submitted that the considerations that apply to the assessment of the possibility of harm in the future are different where an applicant holds a certain political opinion vis-a-vis where such opinion may be imputed to the Applicant. He submitted that the Authority, at [21], (see above reasons at [23]), treated as the same question whether the Applicant faced a real chance of persecution arising from a political opinion that may be imputed to him by the Taliban by reason of his tailoring work for the Afghani government, with the related, but separate, question of whether the applicant faced a real chance of persecution stemming from political opinions he actually held that were antithetical to the Taliban, referring to: Minister for Immigration and Ethnic Affairs v Guo[1997] HCA 22; (1997) 191 CLR 559.
Mr Chatterjee submitted that the Authority must at least have to have considered whether:
(a)the Taliban may nonetheless become aware of the Applicant’s actual political views; and
(b)if the Taliban did become aware, whether this would place the Applicant at a real chance of being persecuted.
Mr Knowles in response submitted that the only matters that the Applicant referred to in respect of his claim to fear the Taliban were his religion, his ethnicity, his occupation as a tailor stitching uniforms for the police and the army, the fact he sent his children to school, and because he had sought asylum in Australia, and had adopted Western style of dress. As each of those matters were considered by the Authority, the ground should be dismissed.
Consideration
I accept that each of the matters identified by the Minister, were the only matters that the Applicant raised in respect of claim to fear the Taliban, and were each considered by the Authority: see discussion of the Authority’s Decision above at [17]‑[58], and the Decision itself especially at [14], [19], [20]-[21], [25], [27], [28], [32], [34].
I consider that the Authority did not refer to these matters as a manifestation of the Applicant's actual political opinion, as opposed to matters which might cause the Taliban to impute the Applicant with anti‑Taliban political opinions, is irrelevant in this case because the Applicant's specific anti−Taliban activities, and the fact of his ethnicity, were each fully considered by the Authority. Accordingly, characterising those activities as reflective of an actual political opinion held by the Applicant, rather than as an opinion (or opinions) imputed to him, could have made no difference to the conclusion. Any distinction between the Applicant's imputed and actual political opinions was of no consequence, as the Authority had fully addressed the Applicant's specific claims: c.f. AZW16 v Minister for Immigration [2018] FCCA 2229 at [26].
I conclude that there was no failure by the Authority to exercise its jurisdiction by failing to consider claims or integers of claims as asserted by the Applicant. It follows that Ground 1 must be dismissed.
Ground 2
By Ground 2 the Applicant contends that the Authority constructively failed to exercise its jurisdiction in determining the Applicant's claims to fear harm from the Taliban in the future on the basis that he sends his children to school, by limiting its consideration solely by reference to whether the Applicant had previously suffered harm in that regard.
I referred above at [28] to the Authority’s consideration of this claim at [34] of the Decision. There, the Authority stated:
[34] The delegate, in its decision, has also stated that the applicant fears harm from the Taliban because he sends his children to school. I note the applicant has one child is six years of age. I also note the applicant's nephew and niece reside with his wife in Afghanistan and they are both past school age (21 years and 19 years old respectively). The applicant has not claimed that his six year old son or his niece or nephew have ever faced any harm on the basis of attending or not attending school. The applicant himself has also not claimed to have faced any harm on this basis. I am not satisfied there is a real chance the applicant will face harm upon return to Afghanistan on this basis.
Mr Chatterjee submitted that the Authority appears to have dealt with this claim simply on the basis that, as the Applicant or his children had not in the past experienced harm as a result of their attendance at school, there was not a real chance that the Applicant would face harm in the future. He relies on Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [192], noting that:
“If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded. But proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution. Regrettably, cases can readily be imagined where an applicant's fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past.”
The Applicant submits that the Authority constructively failed to exercise its jurisdiction by failing to engage in the necessary assessment of whether the Applicant faced a real chance of persecution by reason of his articulated claim –that the Taliban was against the education of children, and thereby might cause harm to the Applicant for educating his children. The fact that the Applicant had not thus far been harmed, while probative to the question of whether his fear was well‑founded, could not in and of itself be determinative of what is necessarily an assessment of future events.
Consideration
I accept that a person has not so far been harmed is not, of itself determinative of the future risk of harm. However, I consider that it is clear that at [34] of the Decision the Authority adopted a “forward looking” test by considering the risk of harm faced by the Applicant upon return to Afghanistan. This is evident in the Authority’s acknowledgement of the present ages of the Applicant’s children (son, niece, and nephew, and noting that the entry interview states their birth years). The fact that the Authority assessed that future risk by reference to past events is entirely orthodox: see Guo at [575]‑[576].
The Applicant has not established this Ground 2; it must be dismissed.
Ground 3
In Ground 3, the Applicant asserts that the Authority’s findings in respect of the Applicant’s claims that he faced a real chance of persecution by reason of his work tailoring uniforms for Afghani security forces were unreasonable and wrong at law, in that they lacked an “evident and intelligible justification”. In short, these findings were that the Authority did not accept that the Applicant was targeted specifically for that reason, that the Taliban were aware of his occupation, that he received a threatening/ warning/ night letter; or that he was ever threatened by them before he left or would be on return.
The Applicant focusses on 5 aspects of the Authority’s reasoning as being legally unreasonable lacking evident and intelligible justification. While the written submissions state the Applicant focuses on 5 aspects, 4 are then set out. In oral submissions Mr Chatterjee submitted additionally, that there was no foundation for the Authority’s conclusion at [19].
First, Mr Chatterjee submitted that the Authority at [14] appears to have disbelieved the Applicant’s claims of having been detained and beaten by the Taliban on the basis that, as “the applicant was travelling to and from Ghazni city for the purposes of delivering his stitching clothing items and picking up more material … it was highly unlikely that the applicant would not have had any stitching materials on him on the three occasions he was stopped by the Taliban”.
Mr Chatterjee submitted that there was no evidentiary basis for this line of reasoning because there was no evidence before the Authority that the Applicant travelled to Ghazni city “for the purposes of delivering his stitching clothing items”; but rather that his evidence was that he travelled for the purpose of collecting raw materials.
I accept Mr Knowles submission that the Applicant has not proven an absence of evidence for the Authority’s reasoning. The Applicant’s evidence on the issue was that he did work at home in his Village as a sub-contractor for his principal - Employer A - in Ghazni, and that he travelled between the Village and Ghazni once a week to bring stitching materials from Employer A.
His evidence was that he earnt his income as a piece worker. It is reasonable to infer that delivery of finished items of clothing was required. There is no mention of any means by which he obtained raw materials other than travel between the Village and Ghazni by him or his wife and child. It is not unreasonable for the Authority to infer from the evidence that this regular travel would involve not only bringing materials from Ghazni, but also returning finished items to his principal, and that it was highly unlikely that on the 3 occasions the Applicant was stopped he would not have had any stitching materials on him.
The Authority was nonetheless willing to accept the Applicant’s claim that he was stopped by the Taliban and questioned and released immediately. It was not unreasonable, in the circumstances of the Applicant’s release, for the Authority to infer that the Taliban were not aware of the Applicant’s occupation, and that the Applicant was not targeted because of his occupation.
Secondly, Mr Chatterjee submitted the Authority’s disbelief (at [15], see reasons above at [19]) that the Applicant had received a warning letter/night letter, despite the Applicant’s evidence on the issue being consistent, on the basis that it was “doubtful that if the applicant were of interest to the Taliban on the basis of his occupation, that they would only send a letter”, was unreasonable. He argues that the country information indicated that night letters are a well‑known tactic to intimidate, and the Delegate had relied on that country information and apparently accepted that the Applicant had received a night letter.
The Authority reasoned that if the Applicant were of interest to the Taliban, they would have done more than simply sending a warning letter/night letter. The Authority so reasoned in the light of the Applicant’s claim that the Taliban knew where he lived, his travel to and from Ghazni city and where he worked (see translation of letter above at [6(h)]). I consider that the Authority has set out reasoning that provides a logical, and not irrational, basis for its disbelief of the Applicant’s claim to have received the letter. That country information indicated that night letters were a well-known practice to intimidate does not render illogical or unreasonable the Authority’s rejection of the Applicant’s claim to himself have received such a letter.
Thirdly, Mr Chatterjee argued that the Authority erred in finding that if the Applicant was genuinely of interest to the Taliban they would not have released him on the occasions that they had stopped and questioned him. In his written submissions Mr Chatterjee submitted as follows: “this line of reasoning necessarily required the Taliban to have known, at the time that they were questioning the applicant, that he had undertaken the tailoring work in question. The applicant’s evidence on this point was that he had vehemently denied any connection with the Afghani government, and did not have in his possession any incriminating material that might have led the Taliban to realise what work he engaged in”.
I accept Mr Knowles submission that this is precisely the Authority’s point – there was no evidence that the Taliban knew of the Applicant’s tailoring work, and therefore no reason to conclude that the Applicant would be targeted because of that work. The available evidence, apart from the letter, demonstrated that the Taliban had no particular interest in the Applicant. The Applicant’s evidence was that on none of the 3 occasions he was stopped by the Taliban and questioned did he disclose that he was a tailor. His evidence was that he thereafter sent his wife and son to collect materials, as women and children weren’t stopped. However, immediately before he left for Pakistan he travelled by road to Ghazni city, and then to Pakistan, without harm. In this context, the Authority’s reasoning at [18], and earlier at [15] disbelieving the Applicant’s receipt of the letter, has a logical basis, and in the surrounding circumstances adverted to the Authority was entitled to reject the evidence of a threatening letter being sent. To the extent that Mr Chatterjee suggested that the Taliban could have become aware of the Applicant’s work as a tailor after the 3 occasions on which he was stopped and questioned, resulting in the delivery of the threatening letter, that is speculation.
Fourthly, the Applicant asserts that there was no evidentiary basis for the Authority’s finding at [18], (see above at [20]) that:
The applicant’s wife, son, niece and nephew continue to reside at the same residence and since the applicant’s departure in 2012, there is no evidence before me to indicate that the Taliban or any other ‘unknown men’ have been in search of the applicant on the basis of his occupation or any other reason.
Mr Chatterjee submitted that the only evidence before the Authority was that the Applicant’s family had departed their village for Ghazni city shortly before the Applicant left for Pakistan, and therefore there was no evidentiary basis for this line of reasoning. He submitted the Authority is operating under the misconception that the Applicant’s family continue to reside in his home village. In oral submissions Mr Chatterjee referred to the Decision at [18], and [28], and submitted that at [18] the Authority refers to the family residing in Ghazni city, but at [28], to them being in the village in the Applicant’s home area.
Mr Knowles submitted that the Authority did not make such a finding, and that contrary to the Applicant’s assertion, the Authority had accepted that his family had relocated to Ghazni city to the house of his parents‑in‑law. Mr Knowles submitted that the Authority understands the Applicant’s family had moved to his parents‑in‑laws’ house in Ghazni city because at [28], the Authority notes that, “the Applicant will be travelling to where his wife and family continue to reside.
I do not accept either counsel’s submission. I observe that in his entry interview Part B (made in 2013) the Applicant states that his wife and child currently reside in the Village, in the Gighato district (also referred to in the material in evidence as “Jaghatu” and “Jighatu”, the Applicant’s home area), in Ghazni province, and that his wife is his emergency contact. In the Part B form accompanying his application for the Visa (made in 2016), the Applicant states that his wife and children currently reside in Jighatu, Ghazni, and in “Gighato”. In his statutory declaration (which accompanied the application for the Visa), the Applicant does not say otherwise.
I do not consider that the Authority in the Decision operated under any misunderstanding or misapprehension about where the Applicant’s wife and family continue to reside. The Authority at [18] was directing its attention first to the Applicant’s travel with his wife and son to his parents in law’s house in Ghazni city immediately prior to his departure from Afghanistan, but did not make any finding or assumption that that is where they then stayed for the next 4 years. Rather, the Authority observed in the last sentence in [18] that the wife and family continue to reside at the same residence, and that there was no evidence and no claim that the Taliban or other unknown men had been in search of him. I understand from the words “continue” and “same” to mean – in the Village / Jaghatu district. So read, there is no illogicality in the Authority noting that there was no evidence or claim that no-one was looking for the Applicant. The Authority reiterated at [28], and at [32] that the Applicant would be returning to his home area (of Jaghatu) and to somewhere his immediate family continue to reside. This is consistent with the Applicant’s evidence. I find that there is a clear evidentiary basis for this line of reasoning.
Lastly, in oral submissions Mr Chatterjee raised under the ground of unreasonableness the Authority’s findings at [19] in which the Authority finds that even if the Applicant returned to work as a tailor, he would not be of interest to the Taliban. Mr Chatterjee submitted that this was a conclusionary statement with no basis identified. He says there is no logical chain of reasoning, and in the face of the country information (at [16]‑[17]), it is illogical to conclude that the Applicant, as a sub‑contractor, will not face harm.
I do not consider that the Authority’s conclusion at [19] is unreasonable, or illogical. The Authority’s consideration of country information at [16] and [17] identifies the persons the Taliban and Anti‑Government elements target. None of the listed targets are persons with the profile claimed by the Applicant. At [18], the Authority summarises the Applicant’s 11 years working as a tailor in and around Ghazni and Kabul, and the Authority’s findings which have been previously discussed. The Authority rejects the Applicant’s claim to have a risk profile, by reference to a lack of support in either the country information or his personal profile. I consider the Authority at [15]‑[19] demonstrates a logical chain of reasoning open to the Authority. I consider that the Decision at [20] demonstrates a further evident and tangible jurisdiction for the Authority’s reasoning. The Authority had found the Applicant had travelled the Jaghatu – Ghazni highway without being of interest to the Taliban because of his occupation, the country information is that road security has improved, and so even if he travelled that route on his return, working in the same occupation, he would not face a real chance of harm. That is, having travelled undetected before he left Afghanistan, he would have the additional factor of improved road security in future journeys.
I have concluded for the above reasons that Ground 3 is not made out: the Authority did not fall into jurisdictional error.
Ground 4
In Ground 4, the Applicant argues that the Authority failed to take into account a mandatory consideration by failing to take into account the country information before the Authority that corroborated a critical aspect of the Applicant’s overall claims, being that he was threatened by the Taliban by an anonymous letter. Mr Chatterjee emphasised that the Delegate accepted that the Applicant had received the night letter (warning letter), noting that it was in accordance with country information accepted by the Delegate regarding night letters in Afghanistan. The Authority has to conduct a review of the Delegate’s decision: see s.473DB of the Act. Mr Chatterjee referred to EEI17 v Minister for Immigration & Anor [2018] FCCA 527, but now see the decision of the Full Court in Minister for Immigration and Border Protection v EEI17(2018) 261 FCR 461; [2018] FCAFC 166.
As the Full Court in EEI17 observed at [45], referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600: “…Section 473DB of the Act identifies that the Authority must review a fast track reviewable decision (that is, the Delegate’s decision) referred to it under s 473CA of the Act by considering the review material provided to it under s 473CD of the Act. The “review” required under s 473DB requires the Authority to conduct a merits review of the decision of the delegate. The Authority … is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh”.
The Authority is not required to do more than set out the findings in material questions of fact and refer to the evidence or other material on which those findings were based: EEI17 at [49].
The Authority gave reasons why it did not accept the receipt of the letter. In particular, it did so because it did not accept that if the Applicant really was a target of the Taliban, they would have stopped at the threatening letter, and noting the contents of the letter before it.
The choice of country information, and the weight to be afforded to it, is a matter for the Authority: NAHI v Minister for Immigration [2004] FCAFC 10 at [11] – [13]; BCP16 v The Minister for Immigration [2018] FCA 920 at [60] – [63]. That material was referred to by the Delegate does not mean it must also be identified by the Authority as relevant. Further, the fact that a matter is not mentioned in the statement of reasons does not mean it was not considered: Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32].
I find that the Authority did not err. Ground 4 is not established.
Conclusion and orders
I have found that none of the grounds are made out. I have concluded that the Authority did not fall into jurisdictional error. It follows that the Application should be dismissed with costs and I will so order.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 19 February 2020
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