BGE16 v Minister for Immigration

[2016] FCCA 2387

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGE16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2387

Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority failed to take into account the applicant’s personal circumstances – whether the Authority erred in making the adverse finding in relation to relocation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 476

Cases cited:

Minister for Immigration v SZSCA (2014) 254 CLR 317

Applicant: BGE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1300 of 2016

Judgment of: Judge Street

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Sydney

Delivered on: 13 September 2016

REPRESENTATION

Counsel for the Applicant: Mr J Hyde and Mr A Cheema

Solicitors for the Applicant: Kah Lawyers

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1300 of 2016

BGE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 19 April 2016 affirming a decision in respect of a fast track review not to grant the applicant a Safe Haven Enterprise Visa (SHEV) protection visa.

2. The applicant is a Shia Hazara Muslim from the Nawur District, Ghazni Province and before fleeing Afghanistan worked as a teacher. The applicant claims to have an actual or imputed political opinion in support of the government as a teacher because he spent time in Australia. The applicant claims fear of being killed or tortured or abducted from Pashtun nomads (Kuchis) and anti‑government elements if the applicant returns to Afghanistan.

3. The applicant was found to be a citizen of Afghanistan and applied for protection on 27 July 2015. The applicant attended an interview on 17 November 2015 in relation to his protection application.

The Delegate’s Decision

1. On 1 December 2015 submissions were advanced on behalf of the applicant before the delegate which were post‑interview submissions.  Those submissions addressed the issue of relocation and relevantly said as follows:-

   Due to the current security situation in Afghanistan, Mr Abdullah instructs that there is no area within the country to which he could relocate to avoid persecution. It is our submission that the National Government remains ineffective in exercising control over the majority of the country. In the areas that the government does exercise control insurgent attacks and targeted killings remain prominent. We note DFAT's advice that “Kabul remains one of the poorest and most dangerous cities in the world.” In addition DFAT reports that “insurgents regularly conduct high-profile attacks in many parts of Afghanistan, including Kabul” and “mosques, schools, hospitals and other civilian targets are also vulnerable.” DFAT reports a high and increasing number of civilian causalities including in “August 2015, a series of attacks in Kabul resulted in an estimated 355 civilian casualties". This reporting acknowledges the danger to civilians including in particular Mr Abdullah, in Kabul and all through Afghanistan. The dangers in Kabul are such that it is not possible to live safely and the risk of being killed is not far fetched. Accordingly, we submit that it is neither safe for Mr Abdullah to relocate to another part of Afghanistan nor is it reasonable, in the sense that it is practicable, for him to do so. As such, due to the ongoing security situation, it is our ultimate submission that Mr Abdullah would not be safe in any part of Afghanistan and has established a well-founded fear of persecution in all regions of Afghanistan.

   For the reasons set out above we submit Mr Abdullah faces a real chance of serious harm for his race, religion and imputed political opinion. We also submit Mr Abdullah faces a real risk of significant harm if he is returned to Afghanistan and therefore engages Australia's protection obligations under s5J of the Migration Act 1958 (Cth). For the reasons set out above we submit there is no effective state protection in Afghanistan, no internal relocation option and that Mr Abdullah also engages Australia's international obligation under the complimentary protection regime pursuant to s 36 of the Migration Act 1958 (Cth).

2. The delegate found that the applicant would face a real chance of or risk of serious harm or significant harm in his home district but found it was reasonable for the applicant to relocate to Kabul.

3. In the course of the delegate’s reasons, the delegate addressed the security situation that had been referred to in the submissions of the applicant under a heading Security Situation in Afghanistan, relevantly as follows:-

   77. Afghanistan remains a dangerous country. People throughout Afghanistan, regardless of their ethnicity, continue to be exposed to generalized, indiscriminate violence related to the ongoing conflict in the country. In its September 2015 report on Afghanistan, the Department of Foreign Affairs and Trade (DFAT) advised that insurgent groups, including the Taliban, the Haqqani Network, Hezb-e-Islami, al-Qaida, and various other militia and aimed groups, remain engaged in a violent armed conflict against the government and its international partners. In recent months there have been a small number of credible reports that the group known as Daesh (or Islamic State-ISIS) is expanding limited influence in some parts of Afghanistan, predominantly in the east of the country. However, DFAT assesses that Daesh currently has limited capacity and influence in Afghanistan, and that civilians in Afghanistan face a low risk of violence from groups affiliated with Daesh compared to the risk of violence generally in the country."

   78. Insurgents regularly conduct high-profile attacks in many parts of Afghanistan, including Kabul. Common targets for insurgent attacks are government institutions, political figures, the Afghan National Defence and Security Forces (ANDSF), other security forces, foreign missions and international organisations, although civilian targets are also vulnerable. Attacks can include small arms fire, indirect (rocket) fire, suicide bombings, car bombs, improvised explosive devices (IEDs) and complex attacks involving a combination of these methods. In 2014, United Nations Assistance Mission in Afghanistan (UNAMA) documented 7,545 civilian casualties (including 2,643 deaths) from attacks carried out by anti-government elements, an 18 per cent increase on the previous year. Although attacks are often directed at specific targets, the methods of attack can be indiscriminate and often result in civilian casualties.

   79. Insurgent forces contest many areas of the country and no pai1 of the country can be considered free from conflict-related violence. The situation remains fluid. The US Department of Defense reported that levels of violence in Afghanistan vary by province and season, with winter tending to be quieter than the spring or summer due to logistical issues like road accessibility in poor weather. According to The United Nations General Assembly Security Council (UNGASC), conflict in 2015 has predominantly focused in the north-eastern regions around Kunduz, Badakshan and Badghis provinces, in the north-west towards Faryab Province, in the south-east region of Nangarhar Province and in the south, including Helmand Province, with the majority of incidents in the southern and eastern pai1s of the country. While the government retains control of much of the country, pai1icularly in the provincial and district centres, anti-Government elements continued to intimidate the population in many rural areas.

4. The delegate referred to the DFAT Report that assessed Kabul as having a high level of government control and greater level of security than other parts of Afghanistan. The delegate referred to high profile attacks and relevantly found that Kabul was comparatively safer than other provinces in Afghanistan.

5. The delegate referred to low profile of teachers such as the applicant who were not being targeted by reason of their involvement in education, and referred to a further DFAT report which stated that there are currently no significant protection issues for Hazara returnees to Afghanistan beyond the generalised environment of criminal and insurgent violence. The delegate referred to the DFAT report which assessed that it is relatively safe for Hazaras to return to Hazara-majority areas, which included Kabul.

The Authority’s Decision

1. The Authority accepted the applicant was from a particular district and his previous occupation having been a teacher. The Authority referred to the submissions containing a restatement of the applicant’s claims, relevantly in para.7 of the Authority’s reasons as follows:-

   The submission contains a restatement of the applicant's claims and a discussion on the reasons why the applicant disagrees with the department's decision. He states that he continues to fear harm due to his race, religion, membership of a particular social group (teacher in Afghanistan; failed asylum seeker from Western countries) and political opinion (supporter of the Afghan government for having worked as a teacher); that he cannot relocate to Kabul as he was attacked in Ghazni because of his role as a teacher and fears being attacked in the future including in Kabul; he fears from the Taliban and other Anti-Government Elements (AGEs); the department failed to appreciate the risk due to his international links as a failed asylum seeker and a former government employee as a teacher. The submission details the risk of him returning to Afghanistan as a teacher; the risk as a failed returned asylum seeker from a Western country; the risk of harm from ISIS; the lack of state protection; and inability to relocate within Afghanistan, particularly given his previous role as a teacher. The applicant's commentary on these issues was supported with various sources of country information.

2. The Authority referred to the applicant’s disagreement with the Department’s decision and made reference to the submission in respect of country information. The Authority then set out the applicant’s authorities and the applicant’s claims for protection in detail, and turned to the issue of whether the applicant had a well‑founded fear. 

Refugee Assessment

1. Having referred to the feared harm in the applicant’s region, the Authority found that it was satisfied there is a real chance the applicant would be killed or otherwise physically harmed by the Taliban and/or Kuchis as a Hazara Shia in the Nawur District and on the surrounding roads and therefore the applicant’s fear was well‑founded.

2. The Authority identified that under s.5J(1)(c) of the Act, the real chance of persecution must relate to all areas of a receiving country. The Authority relevantly found that it is reasonable for the applicant to relocate to Kabul.

3. In the course of the Authority’s reasons in relation to the feared harm, the Authority referred to the security situation for Hazaras in Kabul, which the Authority said did not differ significantly from that experienced by the general population of the city, and that Hazaras are not disproportionately targeted by criminals or insurgents in Kabul.

4. The Authority made reference to the assessment that in the current environment, people from all ethnic groups are at risk of violence from anti‑government element but no particular group is systematically targeted solely on the basis of their ethnicity. The Authority made reference to the targeting, typically of people associated with government and international communities, or those who appear wealthier than other Afghans, rather than targeting specific groups on the basis of ethnicity.

5. The Authority referred to several attacks that had taken place and noted that they found that the government maintains effective control over Kabul. The Authority made reference to insurgent and criminal violence being common, and referred to the DFAT assessment that there are high profile attacks. The Authority said that there are consistent reports that everyday Hazaras are not systematically targeted on the basis of the Shia religion. The Authority made reference to a different country information report but gave more weight to the DFAT report which was more recent. 

6. The Tribunal found the applicant would be able to access Kabul through the international airport and would not be required to travel outside of Kabul, or on the roads which have been described as being less safe for Hazaras. The Authority found that if the applicant chose to continue studying or working as a teacher, country information does not support teacher students or educational institutions currently being targeted by the Taliban nor any other insurgent groups in Kabul.

7. The Authority was not satisfied there is a real risk the applicant will face serious harm on that basis. The Tribunal was not satisfied there was a real risk to the applicant that he would face any harm as a Hazara Shia who has returned to Kabul from a Western country as a failed asylum seeker.

8. The Authority considered the applicant’s circumstances individually and cumulatively. The Authority found the applicant will be returning to Kabul as a Shia Hazara teacher associated to the government, a former student and a failed asylum seeker returning from a Western country. The Authority noted that the applicant may face a level of harassment and ill‑treatment from the general Pashtun/Tajik population but found that that this did not amount to serious harm.

9. The Authority found that the country information did not support that the applicant will face harm upon return to Kabul for being a teacher associated to the government, former student or a failed asylum seeker from a Western country.

10. The Authority was not satisfied there is a real risk the applicant would suffer or face serious harm upon returning to Kabul on account of any of these reasons, alone or cumulatively. The Authority found that the applicant’s fear of harm was not well‑founded and that the applicant did not meet the definition of refugee under s.5H(1) of the Act and accordingly, did not meet the criteria under s.36(2)(a) of the Act.

Complementary Protection Assessment

1. The Authority then considered the issue of complementary protection and correctly identified the relevant test. The Authority noted that pursuant to s.36(2B) of the Act, that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if it would be reasonable for that person to relocate to an area of the country where there would not be a real risk of suffering significant harm. The Authority identified that it was satisfied it would be reasonable for the applicant to relocate to Kabul.

2. The Authority made reference to its finding that there is not a real chance, in Kabul on account of the applicant being formally employed as a teacher and as a consequence, being associated with the government, or as a former student, or as a failed asylum seeker returning from a Western country, of harm.

3. The Authority made reference to the applicant stating that he feared returning to Kabul due to the worsening of the security situation. The Authority found the applicant has no relevant profile or association to any of the targets, and as such the Authority was not satisfied there is a real risk the applicant will face harm on the basis of the general security situation in Kabul.

4. The Authority made reference to having considered the applicant’s claims and personal circumstances cumulatively that the Authority was not satisfied there is a real risk the applicant will be arbitrarily deprived of his life or that the death penalty will be carried out on him in Kabul. The Authority found there is not a real risk that the applicant will be subject to torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment. The Authority found that it was not satisfied there is a real risk the applicant will face significant harm upon return to Kabul.

5. The Authority made reference to having considered the available country information and considered the personal circumstances of the applicant. The Authority found that it was satisfied that it is reasonable for the applicant to relocate to Kabul.

6. In the course of its findings, the Authority made reference to the security situation in Kabul and found that despite there being insurgent activity in Kabul, they are targeted towards those associated with local and international government, security forces and international organisations.  The Authority found that the applicant did not have any association with those institutions. 

7. The Authority took into account the applicant’s personal circumstances, including the previous treatment the applicant faced in Kabul and the chance the applicant may face a level of harassment in the future.  The Authority made reference to the fact that the applicant was young, able‑bodied, of working age, had studied and resided in Kabul on three occasions in the past, and had experience in teaching, working in a bakery, and has completed a diploma of IT and accounting. The Authority found that the applicant would be returning to a city he is familiar with, has family and friends as support, and the ability to obtain employment given his previous education and work experience.  It was in those circumstances the Tribunal found it was reasonable for the applicant to relocate to Kabul.

8. The Authority found, taking into account the personal circumstances of the applicant in their totality, it would be reasonable for the applicant to relocate to Kabul.

9. The Authority found it was not satisfied there is a real risk that the applicant will face significant harm as defined in s.36(2A) of the Act and accordingly, the applicant did not meet the criteria under s.36(2)(aa) of the Act and confirmed the decision not to grant the applicant a protection visa.

Proceedings Before this Court

1. Mr Hyde of Counsel and Mr Cheema of Counsel in the finest traditions of the bar were appearing pro bono in this matter.

2. The grounds of the application in paragraphs 1 to 7 were not pressed. Grounds 8 and 9 are as follows:-

   8. Further, or in the alternative, the Second Respondent failed to consider, in determining whether it would be reasonable for the Applicant to relocate to Kabul at paragraphs 41-44 of the Decision, the impact of generalised violence upon the Applicant's prospects for relocation.

   Particulars

   a. The Second Respondent found at paragraph 44 of the Decision that the Applicant would not face difficulties in relocating based on the ongoing violence and the generalised security situation in Kabul.

   b. This finding was based solely upon the fact that the Applicant does not have any association with local and international government, security forces and international organisations.

   c. This finding was based on an assessment of the Applicant's risk profile in Kabul relative to other groups, rather than whether the Applicant would have difficulties based on the overall situation in Kabul.

   d. As a result of this, the Second Respondent failed to fully consider the impact of the security situation in Kabul upon the Applicant's ability to reasonably relocate there, and/or employed illogical or irrational reasoning in coming to its decision.

   9. Further, or in the alternative, the Second Respondent failed to consider, in determining whether it would be reasonable for the Applicant to relocate to Kabul, the fact that the roads around Kabul would be unsafe for the Applicant.

   Particulars

   a. The Second Respondent found at paragraphs 28 and 31 of the Decision that the roads around Kabul would be unsafe for the Applicant and that he may face persecution and/or significant harm if he were to travel on these roads.

   b. The Second Respondent failed to consider this in determining whether the Applicant could reasonably relocate to Kabul, and whether as a result it would still be reasonable to relocate to Kabul even if in consequence the Applicant's freedom of movement would be curtailed due to being unable to travel beyond the Kabul city limits.

Consideration and Conclusion  

1. Counsel on behalf of the applicant, took the Court to the delegate’s decision and in particular, the reference by the delegate to the security situation in Afghanistan. The delegate’s reference to the security situation referred to the generalised indiscriminate violence throughout Afghanistan. Counsel on behalf of the applicant took the Court through the reference to the security situation in the Authority’s decision and, in particular, para.27 of the Authority’s reasons where there was reference to both insurgent and criminal violence. 

2. Counsel on behalf of the applicant, took the Court in relation to Ground 8 to the findings in respect of complementary protection and drew attention to the references to the security situation. Counsel on behalf of the applicant, submitted that the Authority had not taken into account the impact of generalised violence in relation to the issue of complementary protection.

3. It was submitted that the reference to the security situation should not be taken to include the concept of generalised violence and that the Authority’s reference to insurgent activity had failed to take into account the impact of generalised violence. The Authority’s decision is to be read as a whole and without a keen eye for error.

4. The Court finds that the reference to the security situation was a reference to both the insurgent and criminal violence. It is apparent from the Authority’s reasons, that it expressly took into account the security situation in relation to the reasonableness of relocation in respect of complementary protection. I find that Ground 8 fails to make out any jurisdictional error.

5. In relation to Ground 9, Counsel on behalf of the applicant developed an argument that the roads were unsafe and the applicant’s potential desire to use those roads meant that it was unsafe for the applicant to relocate to Kabul. Attention was drawn to the adverse findings in relation to the unsafe roads around Kabul. 

6. The Court’s attention was also taken to what was said by the High Court of Australia in Minister for Immigration v SZSCA (2014) 254 CLR 317 and in particular, at [33]. It was submitted that the Authority should have expressly considered the fact that the roads around Kabul would be unsafe and that this was a matter to which the Authority had to turn its mind in considering whether it was reasonable for the applicant to relocate to Kabul.

7. I accept the first respondent’s submissions that the Authority took into account the applicant’s personal circumstances and ability to earn an income as a teacher in relation to the finding that it was reasonable to relocate. I accept the first respondent’s submission that this case is quite different from that in Minister for Immigration v SZSCA (2014) 254 CLR 317. In holding that it was reasonable for the applicant to relocate, the Authority, on a fair reading of its decision, took into account its findings as to the roads around Kabul.

8. I accept the first respondent’s submission that Ground 9 is in substance, an impermissible challenge to the adverse findings of fact made by the Authority. I find there was no jurisdictional error of a kind alleged in Ground 9.

9. The application is dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2016