BDR18 v Minister for Home Affairs
[2018] FCCA 2737
•17 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDR18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2737 |
| Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority failed to consider all of the applicant’s claims – whether the Authority failed to consider an articulated claim – whether the Authority failed to exercise its power under s 473DC of the Act – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473DC, 473GD, 476 |
| Cases cited: CRY16 v Minister for Immigration and Border Protection [2017] FCAFC 210 DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 |
| Applicant: | BDR18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 635 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 17 July 2018 |
| Date of Last Submission: | 17 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Ambikapathy |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
Grant leave to the applicant to rely upon the amended application dated 17 July 2018 filed in Court and the Court dispenses with the need for the filing of an electronic copy of the same.
Time is extended for the bringing of proceedings under s 477 of the Migration Act 1958 (Cth) up to and including 9 March 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 635 of 2018
| BDR18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 20 December 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 27 August 2012. The applicant was found to be Hazara Shia from Ghazni province and on one occasion was stopped by the Taliban at a checkpoint and questioned about a dictionary in his possession.
On 13 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate accepted that there was a real chance the applicant will be persecuted on account of his ethnicity if he were to return and travel on the roads to his home area. However, the delegate found that the real risk of persecution did not relate to all areas of Afghanistan and found that it was reasonable for the applicant to relocate to Kabul.
The Authority
On 16 March 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on submissions and new information. The applicant did put on submissions dated 6 April 2017, which also included a report by Professor Maley dated 16 March 2017.
On 29 November 2017, the Authority wrote to the applicant and invited the applicant to comment on certain information in relation to relocation to Mazar-e-Sharif. On 12 December 2017, submissions were received by the Authority in response to that invitation. The Authority identified the background to the visa application and expressly referred to the submissions that were provided and to the extent that they engage with the delegate’s decision, and found that they were not new information and had regard to the same.
The submission referred to what was identified as new information in relation to the Taliban specifically targeting Hazaras being generally known facts and the Authority was not satisfied there were exceptional circumstances to justify considering that new information. The Authority referred to new information concerning opposition to secular education by the Taliban and the belief that it was the Taliban that killed the applicant’s father and provided an extract of report which the Authority identified as being new information. The Authority was not satisfied there were exceptional circumstances to justify considering that new information.
The Authority also referred to the submissions advancing a contention that the Authority should take into consideration the applicant’s young age and relatively little experience of adult life in Afghanistan. The Authority identified that this was a claim that was not before the delegate and was identified as new information and was not satisfied there were exceptional circumstances to justify considering the new information. The Authority also referred to new information in relation to the ability to subsist in Kabul and was not satisfied there are exceptional circumstances to justify considering that new information.
The Authority referred to country information identified in the submission in respect of three documents including Professor Maley’s report and was satisfied that there are exceptional circumstances to justify considering this new information. The Authority also referred to having obtained new information, being an updated Department of Foreign Affairs and Trade (“DFAT”) report dated 17 September 2017 and referred to inviting the applicant to comment on that information and the issue of reasonableness of relocation to Mazar-e-Sharif, as well as identifying the applicant’s response which the Authority found there were exceptional circumstances to justify considering.
The Authority summarised the applicant’s claims and that the applicant fears on return to Afghanistan he will be harmed because he was a Hazara Shia, he has escaped from the Taliban, as he comes from an educated family, the circumstances surrounding his father’s death and former employment as a teacher, his non-religious, humanist beliefs and civil values, his westernised habits and mannerisms and his residence in and return from a western country, which will cause him to perceived as a spy and infidel and wealthy.
The Authority, in the context of referring to the identity of the applicant, referred to the applicant being asked his date of birth at the protection interview and the applicant stated that he was born on 20 May 1993. The Authority did not accept the applicant had been a truthful witness in regards to his date of birth. The Authority did not accept that the applicant is as young as the applicant alleged. The Authority did accept the applicant is a Hazara whose home area is in the district of Jaghori, Ghazni province in Afghanistan and is an Afghan National.
In relation to the applicant’s parents’ death, the Authority found the applicant’s evidence had evolved. The Authority referred to the applicant’s first and second visa applications and what was stated by the applicant and that in a third application, he stated his father was killed by the Taliban approximately seven years ago and his mother died after his father in a car accident approximately a year later.
The Authority referred to the age determination interview and the applicant stating his father was one of a group of people supported by the education department who was taken and killed by the Taliban and that in his first protection visa statement, he stated his father was killed by the Taliban when travelling from Kabul to Jaghori and made no mention of his father’s employment with the department or that he was travelling with others at the time. In the third protection visa statement, the applicant said his father was a village elder and a teacher who was killed by the Taliban along with two or three other people and that the applicant believed he was killed because he was a Hazara Shia and a teacher.
The Authority accepted that both the applicant’s parents are deceased and accepted that his mother was killed in a car accident and his father was killed by the Taliban. The Authority accepted the father was employed as a teacher when he was killed by the Taliban. The Authority did not accept, however, that the applicant’s father was a village elder when he was killed by the Taliban and found that claim was not raised until the third protection visa application. The Authority referred to the applicant having engaged in an age determination and entry interview and lodged two separate protection visa applications in 2013 and 2016 and that the applicant was assisted to complete his applications by a registered migration agent and an interpreter and made no mention of this claim. It was in those circumstances that the Authority was not satisfied the claim was true and found that the claim had been advanced to enhance the applicant’s claims for protection.
The Authority referred to the applicant having been asked at the protection visa interview whether he had experienced any harm in the aftermath of his father’s death and the applicant stating no and that he believed he was too young at the time and did not understand much. The applicant maintained he was emotionally affected by the event. The Authority referred to the applicant’s father’s death having occurred six or seven years ago and the applicant’s own evidence is that he did not experience any harm in relation to his father’s death. The Authority found there is nothing in the information before the Authority to indicate that the applicant would be imputed with an adverse opinion or profile by the Taliban or any other AGE’s as a result of the circumstance arising from his parents’ death or his father’s former employment as a teacher. The Authority was not satisfied the applicant faced a real chance of harm as a consequence of the circumstances surrounding either of his parent’s death or his father’s former employment as a teacher on return to Afghanistan now or in the foreseeable future.
The Authority referred to the applicant’s evidence in relation to having been detained by the Taliban as evolved and referred to the entry interview. The Authority referred to the country information concerning targeting Hazaras and combined with the applicant’s spontaneous details and disagreed with the delegate’s finding that the events were plausible. The Authority did not find the applicant’s response spontaneous, but found it to be rehearsed and the circumstances appear far-fetched and implausible.
The Authority was not satisfied the applicant had been a truthful witness in regard to the events involving the Taliban. The Authority did not accept the applicant was stopped by the Taliban at a checkpoint in a particular area. The Authority did not accept the Taliban searched the applicant’s belongings and found a dictionary. The Authority did not accept the Taliban took the applicant’s photograph or tied his hands. The Authority did not accept the applicant was taken by the Taliban to the mountain or a village and his hands untied. The Authority did not accept the applicant was left alone and escaped the Taliban by running away. The Authority did not accept that during the applicant’s escape he went to a hotel owned by Hazaras and the next morning he returned to Kabul. The Authority did not accept the applicant’s arrangements to depart Afghanistan were on the basis of this event.
The Authority did not accept the applicant’s claims that he will face harm because he comes from an educated family or that he will be considered educated and harmed on this basis on return. The Authority was satisfied that the applicant’s claims had been included to enhance the applicant’s protection claims.
The Authority referred to the applicant’s return to the district of Jaghori. The Authority referred to the applicant having been consistent throughout his interactions with the Department and three protection visa applications and statements that he is a Shia Muslim and that his religion was one of the reasons he feared he would be harmed on return. The Authority referred to the third visa application and the applicant appearing to step back from his profile as a Shia Muslim asserting that he is not a religious person. The Authority did not accept that the applicant is not a Shia Muslim or that he is not a religious person. The Authority found the statements of the applicant and the third protection visa application he is not a religious person to be contradictory of his own evidence that he fears harm as a Shia Muslim. The Authority was satisfied the applicant’s claim that he is not a religious person and that his beliefs make him distinct from other Afghans and that he will be considered a heretic and harmed and persecuted on return had no credible basis and have been provided in order to enhance the protection claims. The Authority was satisfied the applicant is a Hazara Shia from a village in the district of Jaghori in Ghanzni Province.
The Authority did not accept the country information supports that there is a real chance of Hazara Shias being currently targeted and harmed in the ethnic or religious attacks in the district of Jaghori, nor for other reasons by the Taliban and Islamic State or other groups in the district of Jaghori. The Authority found there was a lack of Taliban or other AGE’s penetration into the district of Jaghori. The Authority was not satisfied there was a real chance the applicant would face harm from the Taliban or other AGE’s, such as Islamic State or their supporters, in the district of Jaghori for reason of his ethnicity or his religion, or his actual or imputed opposition to insurgent groups, or as a Hazara Shia, or for any other reason.
The Authority was not satisfied the applicant faced a real chance of harm in his home district as a returnee from a western country. The Authority was not satisfied the applicant would face a real chance of harm in his home region for reason of having lived in or sought asylum in a western country like Australia, his western habits or mannerisms, or any actual or imputed pro-western political opinion or on the basis he will be considered a spy or infidel, or considered wealthy, or for any other reason on return now or in the reasonably foreseeable future.
The Authority was not satisfied the applicant faces a real chance of harm in relation to being a Hazara on the roads in Hazarajat. The Authority was not satisfied on the evidence that the applicant would not be able to afford the cost of a single one-way fare to travel to Bamyan by air. The Authority was also satisfied, having reached Bamyan by air, the applicant would be able to travel by road through the Hazara dominated district of Behsud in Wardak Province, and then onto the district of Nawur in Ghazni Province and then onto the applicant’s home area district of Jaghori.
The Authority was not satisfied the applicant would face a real chance of harm on route between Kabul and Bamyan by flight, or Bamyan to the district of Jaghori by road through the district of Behsud in Wardak province, and onto the district of Nawur in the Ghanzi Province and then onto the applicant’s home area, in the district of Jaghori on return now or in the reasonably foreseeable future. The Authority was satisfied the applicant would be able to safely access his home area.
The Authority was satisfied that there was not more than a remote chance of the applicant being harmed in generalised violence on return to his home area. Having considered all the information, the Authority was satisfied the applicant would not face a real chance of persecution from the Taliban or any other AGE’s, or any other group or person on return to Afghanistan on any of the bases claimed.
The Authority found the applicant does not meet the definition of refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
Ground 1
The Immigration Assessment Authority failed to consider a claim raised clearly or squarely on the material before the IAA.
Particulars
1. The applicant provided a written submission to the IAA on 6 April 2017 (First Submission) (IAA decision [4]).
2. The IAA noted that the First Submission “contends that “the IAA [should] take into consideration [the applicant’s] young age and relatively little experience of adult life in Afghanistan”” (IAA decision at [8]).
3. The IAA recognised this contention as a “claim” (Youth Claim) (IAA decision [8]). The Youth Claim related to a fear of persecution on the basis of membership of particular social group, that is, Afghan youths.
4. The IAA held the Youth Claim was “new information” under s 473DC of the Migration Act 1958 (Cth) (Act), applied the test under section s 473DD to the claim and was “not satisfied there are exceptional circumstances to justify the consideration of this new information”
5. On this basis, the IAA did not consider the Youth Claim.
6. This amounts to a jurisdictional error arising from a failure to consider a claim in circumstances where:
(a) The Youth Claim was raised clearly or squarely on the material before the IAA.
(b) The IAA considered the “inconsistent” information provided by the applicant about his age but failed to make any specific finding as to his age (IAA decision at [19] to [25]).
(c) There was country information before the IAA relevant to the Youth Claim:
(i) IAA invited the applicant to comment on new country information, the applicant responded with a submission referring to extracts of other country information that were not before the delegate (Second Submission) and the IAA was “satisfied that the information was not and could not have been provided to the delegate and that there are exceptional circumstances to justify considering it under s 473DD” (IAA decision at [13]).
(ii) The Second Submission contained country information regarding “Afghan youth” being “deprived of basic access to healthcare” and having “significantly worse mental health profiles” (Second Submission at page 13).
Ground 2
The IAA failed to consider an articulated claim.
Particulars
1. The Second Submission included a claim of “serious psychological harm likely to be suffered by [the applicant]” (Psychological Harm Claim)
2. The IAA did not consider the Psychological Harm Claim.
3. This amounts to a jurisdictional error arising from a failure to consider a claim in circumstances where:
(a) The IAA was satisfied that the information in the Second Submission “was not and could not have been provided to the delegate and that there are exceptional circumstances to justify considering it under s 473DD” (IAA decision at [13]).
(b) The Psychological Harm Claim was articulated or, at the very least, raised clearly or squarely in the Second Submission.
(c) The Second Submission included country information regarding the “psychological trauma imposed on members of the civilian population and local communities”.
Ground 3
The IAA acted unreasonably in not considering whether to exercise its power under s 473DC(3) of the Act.
Particulars
1. The IAA made numerous adverse credibility findings based on apparent inconsistencies and evolutions of the information arising out of the evidence given by the applicant:
(a) at the arrival interview on 17 September 2012, entry interview on 19 November 2012 and/or visa interview on 1 December 2016; and/or
(b) in his invalid protection visa application lodged on 27 September 2013 (Invalid Application), his subsequent but superseded Safe Haven Enterprise Visa application lodged 16 May 2016 (Superseded Application) and his final Safe Haven Enterprise Visa application lodged 31 May 2016 (SHEV Application).
2. The decision of the delegate made no mention of the Invalid Application or the Superseded Application.
3. The apparent inconsistencies or evolutions in the information provided by the applicant, particularly in relation to the invalid application or the Superseded Application, were not put to the applicant.
4. The applicant did not, therefore, have an opportunity to comment on apparent inconsistencies or evolutions in the information provided by the applicant.
5. In these circumstances, the IAA ought to have considered whether to exercise its power under s 473DC(3) and invite the applicant, orally or in writing, to comment on the documents or the apparent inconsistencies.
6. The IAA failed to do so and, accordingly, the IAA fell into jurisdictional error.
Ground 1
Ms Ambikapathy of counsel on behalf of the applicant in relation to ground 1, took the Court to the material at Court Book pages 391, 399, 470 and 494. The Court raised with Ms Ambikapathy the existence of a certificate under s 473GD(1) of the Act in relation to an age determination assessment and Ms Ambikapathy properly acknowledged that the document did not further the applicant’s argument in relation to whether or not there was a claim that should have been assessed by the Authority in respect of the applicant’s youth.
The Authority identified the youth claim in the submissions as being new information. However, it was not satisfied that there were exceptional circumstances to justify considering the same. Ms Ambikapathy submitted that independent of the submission which the Authority rejected as new information, the youth claim arose on the material before the Authority. In considering the youth claim submission, the Authority found that such a claim had not previously been raised. It was open to the Authority to so find.
I do not accept that the material before the Authority required the Authority to address the alleged youth claim. The applicant never articulated the claim at any time before the delegate where he was represented and the Court finds that it cannot be said that such a claim clearly arose on the material before the Authority. The country information submitted to the Authority did not amount to a claim that the applicant feared persecution in Afghanistan simply because of his age or inexperience of adult life. That country information was put forward to support a claim to fear psychological harm if the applicant were to relocate to Mazar-e-Sharif and thus to render relocation unreasonable.
I accept the first respondent’s submission that no such claim clearly arose on the material before the Authority. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Ms Ambikapathy took the Court to the submissions of the applicant dated 12 December 2017 to support the applicant’s claim of serious psychological harm likely to be suffered by the applicant.
I accept the first respondent’s submissions that the reference to psychological harm was raised by reference to objection to relocation to Mazar-e-Sharif and that no such claim clearly arose on the material before the Authority. The Authority was not required to address a claim that did not arise on the material and was not advanced. The reference to psychological harm in the context of reasonableness as to relocation does not support there being an articulated claim that the Authority failed to address. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3 Ms Ambikapathy referred to the Authority taking into account material from the invalid visa applications. Ms Ambikapathy submitted that that material had then been used to make adverse credibility findings in relation to want of consistency by the applicant in relation to certain findings as summarised above by the Authority.
Ms Ambikapathy submitted that it was legally unreasonable for the Authority in the circumstances of the applicant’s claims, and given the favourable finding that the applicant had had in relation to his home region before the delegate, not to consider whether to exercise the power under s 473DC of the Act before taking into account and making adverse findings in respect of the applicant’s information provided in the invalid visa applications.
The information in the invalid visa applications was not new information and was information before the Department. I do not accept that any inference should be drawn that the invalid visa applications were not information before delegate. The absence of express reference by the delegate to the invalid visa applications does not mean that this was information that was not before the delegate. Further, it is apparent from the applicant’s own statement and statutory declaration that the applicant wanted to rely on information he had provided in the earlier visa application, being his statutory declaration dated 27 September 2013.
This is not a case where there was any legal unreasonableness in the Authority failing to expressly address in its reasons whether to exercise the power under s 473DC of the Act. It was open to the Authority to make different findings in respect of those made by the delegate and this is not a case where the use of the applicant’s earlier invalid visa applications gives rise to any circumstance that constitutes legal unreasonableness in the failure to expressly address whether to exercise the powers under s 473DC of the Act.
I accept the first respondent’s submissions that the decision in CRY16 v Minister for Immigration and Border Protection [2017] FCAFC 210 (“CRY16”) and DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 (“DFW16”) are clearly distinguishable. The decision in CRY16 was made on a completely different basis as to relocation that had not been addressed. That is not the case here.
In DFW16, it appears that the previous visa applications not referred by the delegate were the sole basis for the inconsistencies found by the Authority. That is not the present case. Further, the material in the statutory declaration by the applicant squarely incorporated the earlier material provided by the applicant to the Authority. There was no obligation on the Authority to expressly consider the exercise of its power under s 473DC of the Act in the circumstances of the present case. No jurisdictional error as alleged in ground 3 is made out.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 5 October 2018
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