BCC18 v Minister for Home Affairs - [2020] FCCA 310

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:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 310
Decision Date: 19 February 2020

CaseChat Overview and Summary

The applicant, BCC18, sought judicial review of a decision by the Immigration Assessment Authority (IAA) which affirmed a delegate's refusal to grant a Safe Haven Enterprise Visa (SHEV). The applicant, a Hazara Shia from Afghanistan, claimed to have suffered persecution and feared future harm due to his occupation as a tailor sewing uniforms for the Afghan army and police, and due to his ethnicity. The dispute centred on whether the IAA adequately considered the applicant's claims and the relevant country information.

The legal issues before the court were whether the IAA erred by failing to consider all aspects of the applicant's claims, including both actual and imputed political harm, and whether the IAA's findings were unreasonable or lacked an evident and intelligible justification. Specifically, the court was asked to determine if the IAA had properly considered the applicant's account of being stopped by the Taliban, receiving a threatening letter, and the potential for harm based on his occupation and ethnicity.

Judge Baird found that the IAA had considered the material before it, including country information published after the delegate's decision. The IAA accepted the applicant was a Hazara Shia and worked as a tailor, and that he was stopped by the Taliban on three occasions. However, the IAA did not accept the applicant was harmed or threatened on these occasions, nor did it accept that the threatening letter was genuine or the basis for his departure. The IAA reasoned that if the applicant were of significant interest to the Taliban, they would have acted on the earlier occasions he was stopped. The court concluded that no jurisdictional error had been established, as the IAA's findings, while not accepting all of the applicant's assertions, were supported by its reasoning and the available country information.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for 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.

Ratio Decidendi

Legal Principle Established

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. 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.