BGN18 v Minister for Immigration and Anor

[2020] FCCA 3158

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGN18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3158

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority did not address an integer of the applicant’s claim – whether the Authority did not have a real and meaningful engagement with the applicant’s claims and evidence – whether the Authority did not take into account relevant considerations – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: BGN18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 692 of 2018

Judgment of: Judge Street

Hearing date: By consent decided on papers

Date of Last Submission: 29 September 2020

Delivered at: Sydney

Delivered on: 27 November 2020

REPRESENTATION

Counsel for the Applicant: Mr S Tully

Solicitors for the Applicant: Ryburn Solicitors

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: AGS

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs as agreed or as assessed or as taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 692 of 2018

BGN18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings seeking 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 pt 7AA of the Act made on 7 February 2018 affirming a decision of a delegate of the first respondent (“the Delegate”) to refuse to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. In March 2013, the applicant arrived in Australia as an unlawful maritime arrival.

3. The applicant claimed to be from a particular province in Afghanistan. The applicant claimed that he lived in Kabul while attending university and visited his home province two or three times per month. The applicant claimed that in mid-2012 when returning to his home province with his brother and teacher his car was stopped by two Taliban soldiers who searched everyone. The applicant claimed that they were blindfolded and beaten and then freed ten days later by government troops.

4. The applicant claimed to fear harm, in summary, because of his adverse profile with the Taliban, his Hazara ethnicity, his Shia Muslim faith, being an asylum seeker who has spent time in a Western country and by reason of an imputed Christian conversion.

5. On 1 May 2017, the Delegate refused to grant the applicant a Safe Haven Enterprise visa.

6. On 12 May 2017, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The Authority provided a fact sheet and practice direction attached to that letter, giving the applicant an opportunity to put on new information and submissions. The applicant put on new information and submissions dated 25 May 2017 to which the Authority referred in its reasons.

7. The Authority in its reasons identified the background to the applicant’s Safe Haven Enterprise visa application.

8. The Authority identified having regard to the material given by the Secretary under s 473CB of the Act.

9. The Authority identified having regard to the submissions dated 25 May 2017 insofar as they engaged with the material that was before the Delegate.

10. The Authority correctly identified the whole of the limbs of s 473DD of the Act and, on a fair reading of the Authority’s reasons, addressed the requirements of s 473DD(b) of the Act. The Authority found that the new information did not meet the requirements of s 473DD of the Act. The Authority also found that there were exceptional circumstances to take into account more recent country information, being the Department of Foreign Affairs and Trade (“DFAT”) two new country information reports in relation to Afghanistan.

11. The Authority summarised the applicant’s claims, including the incident that occurred in mid-2012.

12. The Authority correctly identified the relevant law, including in an attachment incorporated by pagination in the Authority’s reasons.

13. The Authority identified that the applicant at the arrival interview had said that his parents and brother reside in his home province. The Authority referred to the applicant’s Safe Haven Enterprise visa application in which the applicant identified that he lived at his home province from January 2000 until October 2012, with a brief stay in Pakistan from September 2012 until October 2012, and that the applicant identified that he studied at a university in Kabul from March 2011 until July 2011. The Authority also took into account that according to the applicant’s Taskera his place of residence is in his home province. The Authority identified that according to an undated receipt from a particular entity, the applicant’s address is listed as Kabul.

14. The Authority did not accept that the applicant’s home area was Kabul. The Authority found that the applicant had always resided in his home province, except for a period of four months while attending tertiary education in Kabul. The Authority did not accept that the applicant’s family now lives in Kabul or that the applicant resided with his family in Kabul when he was living there in 2011.

15. The Authority found the applicant’s claims in relation to his capture and escape from the Taliban to be unconvincing. The Authority identified significant inconsistency in relation to applicant’s evidence about how he came to the attention of the Taliban. The Authority referred to the applicant’s assertion of the events in mid-2011 when the applicant was actually at university from March 2011 until July 2011.

16. The Authority also found the applicant’s explanation as to why he was travelling to be unconvincing. The Authority felt the applicant’s evidence in the Safe Haven Enterprise visa interview contradicted his evidence in his Safe Haven Enterprise visa statement in relation to his travel to visit his family. The Authority also found it difficult to accept that a university would admit a person or allow them to study for up to four months without prior evidence of academic results.

17. The Authority identified inconsistencies in the applicant’s evidence as to whether he was travelling to or from Kabul when he was captured.

18. The Authority identified inconsistency in relation to the applicant’s evidence as to the circumstances that led to him departing Afghanistan.

19. The Authority found the applicant’s evidence in relation to his claimed capture and escape from the Taliban to lack real substantive detail as if he was recounting a genuinely-lived experience.

20. The Authority was prepared to accept that the applicant attended university as claimed.

21. The Authority, taking into account the inconsistencies and difficulty with the applicant’s evidence, concluded that the applicant was not recalling a genuine personal experience as to the events he claims led to his decision to leave Afghanistan. This is clearly a reference to the allegations in respect of the mid-2012 claim identified by the Authority in its reasons. The Authority referred to the inconsistencies in relation to the applicant’s evidence in relation to when he was abducted and the circumstances surrounding his abduction and escape. The Authority found the applicant’s evidence in relation to the same to be unconvincing. The Authority found that the applicant had fabricated these claims in order to enhance his application for protection.

22. The Authority did not accept the applicant was abducted by the Taliban or any other group in 2012 or at any other time as claimed. Accordingly, the Authority rejected the applicant’s claim that he is a person of interest to the Taliban as a result of this claimed event.

23. The Authority referred to the applicant’s claims concerning being a Hazara Shia. The Authority found that the applicant does not face a real chance of harm in his home area from an insurgent group like Islamic State or the Taliban for reasons of his religion, his ethnicity, or due to him being a Hazara Shia now or in the reasonably foreseeable future. The Authority found that the applicant does not face the real chance of persecution for these reasons in his home province.

24. The Authority was satisfied that the applicant would return to Kabul and then would be required to travel by road to his home province. The Authority took into account country information. The Authority found the chance that the applicant would be involved in an incident or attacked on his return to his home region by road because of his ethnic or religious profile to be remote. The Authority found that the applicant would be able to safely use the Kabul airport and travel by road to his home province. The Authority found that the chance of the applicant being harmed in transit is remote. The Authority was not satisfied that the applicant faced a real chance of harm in accessing his home province.

25. The Authority referred to discrimination suffered by those of Hazara ethnicity. The Authority was not satisfied that the discrimination to which the applicant may be subject would constitute serious harm.

26. The Authority was not satisfied that there were any particular vulnerabilities or barriers that would deny the applicant’s capacity to earn a livelihood on return to his home province or that he will experience significant hardship or would be denied access to basic services that threaten his capacity to subsist now or in the reasonably foreseeable future.

27. The Authority also took into account that the applicant would have support from his family as he did prior to coming to Australia.

28. The Authority took into account country information and found that there is no real chance of the applicant facing persecution in his home province on the basis of his religion, his ethnicity, his time spent in Australia, his western links including imputed links, as a returnee, asylum seeker or for any other reason.

29. The Authority found that the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act and did not meet the requirements of definition of refugee in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

30. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

31. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were initially in the docket of another Judge who made orders by consent for the matter to be determined on the papers without an oral hearing.

2. This Court wrote to the parties identifying that the matter had been moved to the docket of this Court and that the Court understood that order to be one consenting to the matter being determined without an oral hearing under s 13 of the Federal Circuit Court of Australia Act 1999 (Cth) and to identify within seven days if the parties did not accept that understanding and wished there to be an oral hearing. No request was made for an oral hearing or any issue taken with the intention behind the consent order being an order dispensing with the holding of an oral hearing under s 13 of the Federal Circuit Court of Australia Act 1999 (Cth).

3. The Court has treated the affidavits that have been filed as having been read and, accordingly, in evidence. The Court has also treated the electronic copy of the Court Book as being marked as Exhibit A in the proceedings. The Court has read the written submissions filed by both parties which the Court has taken into account.

Grounds in the amended application

1. The grounds in the amended application are as follows:

   1. The IAA failed to comply with s 473DB of the Act.

   Particulars 1A

   a. In the material before the IAA, the applicant had claimed to fear persecution by reason of his profile as someone who was a University student in Afghanistan.

   b. In its reasons for decision, the IAA:

   i. accepted that the applicant was a university student (at [30]); and

   ii. rejected the applicant's claim to have been abducted by the Taliban in 2012 (at [31]); but

   iii. did not otherwise address the applicant's claim when determining whether he had a well-founded fear of persecution.

   c. By failing to consider one of the applicant's claims, the IAA erred by failing to consider the review material provided to it.

   Particulars 1B

   a. In submissions dated 21 April 2016 the applicant’s then representative identified country information to the effect that criminal activity was worsening across Afghanistan and corruption existed within the Afghan local police.

   b. It ought to be inferred from its failure to refer to this country information in its reasons for decision that the IAA failed to consider it.

   c. By failing to consider this country information, the IAA erred by failing to consider the review material provided to it.

Ground 1A

1. In relation to ground 1A, the applicant submits that there was a claim that emerged from the material that the applicant feared persecution by reason of having been a university student in Afghanistan and the Authority failed to consider and make dispositive findings in respect of that integer of the applicant’s claims.

2. It is the case that the Authority accepted the applicant may have been at university in Kabul. The applicant’s submissions referred to the Taliban opposing higher education whether by public or private educational institution and referred to the applicant having been detained by the Taliban.

3. It is apparent on a fair reading of the Authority’s decision that the Authority took into account the applicant’s attendance at that higher education institution and, indeed, accepted that the applicant may have attended the same for four months. The Authority, however, rejected the incident in which the applicant alleges he was identified and then detained by the Taliban in mid-2012. It was in that context that the Authority found that it rejected the applicant’s claim that he is a person of adverse interest to the Taliban as a result of that claimed event.

4. This was a finding dispositive of the claim that the applicant feared harm because the Taliban were aware of his higher educational institution attendance.  The Authority’s reasons on a fair reading as a whole had taken into account that the applicant may have attended university as referred to in paragraph 30 of the Authority’s reasons. The adverse finding that the applicant was not a person of adverse interest to the Taliban in paragraph 31 of the Authority’s reasons was dispositive of the applicant’s claims in relation to a fear of harm by reference to his attendance at university and the Taliban.

5. There was no integer of the applicant’s claim that the Authority failed to address. Nor was there any failure to have a real and meaningful engagement with the applicant’s claims and evidence. The adverse finding in paragraph 46 of the Authority’s reasons that the applicant does not have a well-founded fear of persecution was clearly dispositive of the whole of the applicant’s claim that included his attendance at university. No jurisdictional error is made out by ground 1A.

Ground 1B

1. In relation to ground 1B, the applicant relies upon the affidavit evidence to contend that there were submissions that were received by the Department dated 21 April 2016. The Court accepts the first respondent’s affidavit evidence that no such submissions were received by the Department and that no such submissions were before the Delegate. Accordingly, no jurisdictional error as alleged in ground 1B can be made out.

2. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 27 November 2020