BGT18 v Minister for Home Affairs
[2021] FCCA 1425
•24 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BGT18 v Minister for Home Affairs [2021] FCCA 1425
File number: ADG 103 of 2018 Judgment of: JUDGE YOUNG Date of judgment: 24 June 2021 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse to grant a Safe Haven Enterprise Visa – whether the Authority assessed the criteria in section 473DD(b) of the Migration Act 1958 (Cth) before assessing the criterion in section 473DD(a) of the Act – where the Authority's reasons indicate it considered the criterion in section 437DD(b)(i) was met before assessing whether there were exceptional circumstances pursuant to section 473DD(a) – where the new information referred to by the applicant covered the same material already independently obtained by the Authority – no jurisdictional error made out
MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse to grant a Safe Haven Enterprise visa – whether the Authority impermissibly engaged in an assessment of comparative risk of safety in Mazar-e-Sharif and other places in Afghanistan – where the Authority was satisfied that the chance of harm to the applicant in Mazar-e-Sharif was remote – no jurisdictional error made out
MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse to grant a Safe Haven Enterprise visa –whether the Authority undertook the required "fact intensive assessment" in determining that it was reasonable and practicable for the applicant to internally relocate to Mazar-e-Sharif – where the Authority found the applicant to be a single able-bodied man of working age without specific vulnerabilities –where the Authority found the applicant to have a wife and three children –where the Authority failed to consider the particular circumstances of the applicant and his family – jurisdictional error made out – costs reserved
Legislation: Migration Act 1958 (Cth) ss 36, 473DD Cases cited: AUS17 v Minister for Immigration [2020] HCA 37, 94 ALJR 1007
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
MZANX v Minister for Immigration and Border Protection [2017] FCA 307
Number of paragraphs: 28 Date of hearing: 20 April 2021 Place: Darwin Counsel for the Applicant: Dr McBeth Solicitor for the Applicant: Beena Rezaee Legal & Migration Counsel for the First Respondent: Mr d’Assumpção Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
ADG 103 of 2018 BETWEEN: BGT18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 16 February 2018.
2.A writ of mandamus issue directed to the Second Respondent requiring it to determine the application made to it for review of the decision of a delegate of the First Respondent dated 10 May 2017.
3.Costs are reserved. The Applicant and First Respondent may file written submissions in relation to costs within fourteen (14) days of the date of this order.
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) affirming the decision of the delegate to refuse the applicant a Safe Haven Enterprise Visa.
The applicant is a citizen of Afghanistan. He came to Australia in 2014. He is of Hazara ethnicity and Shia faith. His refugee claims were, in summary, that he was subject to persecution because of both his ethnicity and his faith or religion. His home area was the Behsud district in Maidan Wardak province, Afghanistan. He said that in 2009 his family was forced to leave their home area because of conflict with Kuchi nomads. He said his family relocated to Kabul. He said his father returned to his home district in 2009 and disappeared. He said he has not been seen since and is presumed dead.
He also claimed to have been employed by a company associated with the US-led invasion of Afghanistan and to have been targeted by the Taliban as a result. He said he was kidnapped while travelling on a bus between Kabul and Farah in 2013. He said he was threatened with death but escaped and made his way to Kabul. Eventually he came to Australia.
The Authority accepted that the applicant had been employed by a company associated with the foreign presence in Afghanistan but was unable to find if the company was American or Afghan. It accepted that the applicant had been kidnapped from a bus and threatened with death. However, it did not accept that the applicant was specifically targeted or that he had a “profile” that marked him as a target. The Authority was not satisfied that the applicant was at risk of significant harm, if he were to return to Afghanistan, should he relocate from Kabul to Mazar-e-Sharif in northern Afghanistan.
The grounds of review are as follows:
1.The IAA erred in its construction of s 473DD, in that it failed to have regard to the criteria in s 473DD(b) before finding that there were no exceptional circumstances within the meaning of s 473DD(a) to justify considering the new information.
Particulars
(a)The IAA found at [11] that it was satisfied that there were no exceptional circumstances to justify the consideration of the new information provided by the applicant.
(b)The IAA did not consider and made no finding on either of the criteria in s 473DD(b).
(c)The approach of the IAA in doing so was contrary to the decision of the High Court in AUS17 v Minister for Immigration [2020] HCA 37.
2.The IAA failed to conduct the task required by statute in its consideration of the question of whether it was reasonable for the applicant to relocate to Mazar-e-Sharif, in that the IAA applied a test of relative safety and relative reasonableness, rather than safety and reasonableness per se.
Particulars
(a)The IAA’s assessment of the whether the applicant would be safe in Mazar-e-Sharif was based on a finding that the area was relatively safe compared to other areas of Afghanistan.
(b)The IAA’s assessment of the reasonableness of relocation to Mazar-e-Sharif was based on a finding that the security outlook in that area was more favourable compared to other areas of Afghanistan.
Ground one relies on the High Court decision in AUS17 v Minister for Immigration [2020] HCA 37, 94 ALJR 1007 (AUS17) where the Court held that in discharging its statutory duty under section 473DD of the Migration Act1958 (Cth) (the Act) the Authority was required to consider the criteria in section 473DD(b)(i) and (ii) before assessing whether there were exceptional circumstances to permit the consideration of new information pursuant to section 473DD(a). The applicant and the Minister agreed that this case set out the right approach for the Authority. The applicant submitted that the Authority had failed to have regard to the fact that the applicant had provided extensive and detailed information after the delegate's decision bearing on the security situation in all parts of Afghanistan. The respondent acknowledged that the Authority did not make any express reference to section 473DD(b)(i) but, having regard to the substance of its consideration, submitted that it was evident the Authority approached the matter in conformity with AUS17. The respondent submitted that a fair reading of paragraph [11] of the Authority’s decision made it clear that the Authority accepted that the material that the applicant sought to have considered was recent information and information that was not available at the time of the delegate's decision. The respondent submitted that implicit in that was a recognition that section 473DD(b)(i) was satisfied and that the issue then was whether that, and any other factor, satisfied the requirement in section 473DD(a) for exceptional circumstances permitting the Authority to consider the new information. It was agreed between the parties that there was no material satisfying the description in section 473DD(b)(ii).
The respondent submitted that when other parts of the Authority’s decision were considered it was apparent that the Authority had accepted that more up-to-date information was required. It was submitted that the Authority had regard to Department of Foreign Affairs and Trade (DFAT) and European Asylum Support Office (EASO) material about Afghanistan from 2016 through to 2017 that discussed the "overwhelming majority" of the incidents referred to in the material the applicant sought to have considered. At paragraph [11] the Authority said:
… I do not consider the fact that the country information provided by the applicant through his representative is recent or new of itself is an exceptional circumstance. Weighing all the circumstances, I am not satisfied there are exceptional circumstances to justify consideration of the new country information provided by the applicant through the representative’s submissions.
It was submitted that on a fair reading of the Authority’s reasons, particularly at paragraph [11], it was apparent that the Authority considered that the material from DFAT and EASO covered the same events referred to in the material that the applicant sought to have considered and that it followed that there were no exceptional circumstances for the purpose of section 473DD(a).
I accept the respondent's submissions. I accept that on a fair reading of the reasons the Authority accepted that the applicant's information satisfied the criterion in section 473DD(b)(i) and that information was of significance. I also accept the Authority considered that because it had information from other sources, DFAT and EASO, covering the overwhelming majority of the same incidents raised by the applicant it was not necessary to have regard to the information put forward by the applicant to properly consider his claims and, accordingly, there were no exceptional circumstances. In my view, that process of reasoning is in conformity with AUS17.
Before concluding consideration of this ground it is necessary to refer to another point. During submissions the respondent said that the Authority had "inverted" the order of consideration referred to by the High Court in AUS17. It was not entirely clear to me what the respondent meant to convey by this submission. The applicant said that “concession” was enough to indicate jurisdictional error because AUS17 made it clear that the applicability of 473DD(b)(i) and (ii) must be considered before section 473DD(a).
I accept the latter part of the applicant’s submission, as far as it goes. It is consistent with the process of consideration described in AUS17:
10Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11 Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
As the passage indicates, it is necessary to assess new information against the criteria in section 473DD(b)(i) and (ii) and then, if at least one of those criteria is satisfied, to assess whether there are exceptional circumstances to justify considering the new information. In my view, that is the process outlined in the passage above from the Authority’s reasons; it accepted the information was new – satisfying the criterion at (i) – but because the information was replicated elsewhere and separately considered, and there were no other relevant factors, it concluded there were not exceptional circumstances. I see no inconsistency with the process described in AUS17. This ground fails.
In the second ground the applicant asserts that the Authority, in making the complementary protection assessment required by section 36(2)(aa) of the Act, engaged in a comparative assessment of the safety of Mazar-e-Sharif and other places in Afghanistan, which is impermissible: CID15 v Minister for Immigration and Border Protection [2017] FCA 780. The applicant pointed to paragraph [86] of the Authority’s decision in particular which contains expressions such as "more secure", “relatively less affected" and so on. The respondent conceded that, taken alone, paragraph [86] would give some indication in support of the applicant's contention. The respondent submitted, however, that having regard to other parts of the Authority’s reasons, particularly paragraphs [34], where the relevant test was correctly stated, and [74] and [75], where comparative terminology is not used, it is apparent that the Authority was satisfied, in absolute terms, that the chance of harm to the applicant in Mazar-e-Sharif for any of the reasons he had advanced in his claims was remote. The respondent conceded that there was some material before the Authority, particularly the report of Professor Maley, which indicated that nowhere in Afghanistan was absolutely safe but submitted that was not inconsistent with a conclusion that the risk of harm faced by the applicant because of the reasons or claims advanced by him was remote.
Counsel for the respondent submitted that the use of language of legal fiction - "there is taken not to be" - indicates that section 36(2B) is not directed to requiring a decision-maker to be satisfied there is no risk at all to a returning applicant, as is apparent from section 36(2B)(c) which provides that an applicant is not taken to be at serious risk of harm if the risk is one faced generally by the population.
I accept the respondent’s submissions for the reasons outlined. I am not satisfied that the Authority has merely engaged, impermissibly, in an assessment of comparative risk. This ground fails.
I raised with the respondent my concern that the assessment of whether the applicant and his family could reasonably relocate was carried out at a level of generality inconsistent with the guidance provided by Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (MZANX) where she said that such an assessment was “fact intensive”. My particular concern was that the Authority apparently accepted that the applicant would be without family or tribal links in Mazar-e-Sharif. According to an opinion expressed by Professor Maley, and apparently accepted by the Authority, the applicant may, therefore, be at risk of destitution, exploitation or criminal predation. The Authority concluded that the applicant was not at such risk because he fell into an exceptional category identified by Professor Maley as “single able-bodied men of working age without specific vulnerabilities”.
However, the Authority then went on to observe that the applicant is not single. The Authority’s reasons do not describe the applicant’s relevant family constellation or relationships in any detail but the applicant’s statutory declaration supporting his application for refugee status said that he has a wife and three children: two sons and a daughter. The dates of birth of the children are not recorded in the material as far as I can see but the applicant said in his statutory declaration that they were born in 2006, 2008 and 2011, making them about 14, 12 and 9 years old respectively. The family constellation is also described in the delegate’s reasons. The applicant’s wife and children were said to live with his mother in Kabul. The applicant’s maternal uncle and his children also live in the same suburb of Kabul.
The factors referred to in the Authority’s consideration of the applicant’s family circumstances in the context of relocation to Mazar-e-Sharif are relatively few. At paragraph [41] the Authority acknowledges that the applicant’s “family members are attending school in Kabul” which is presumably a reference to the applicant’s children. At paragraph [47] there is a reference to the applicant’s younger brother who was said to be in year eight at school. At paragraph [87] the Authority noted that the applicant had made
… persuasive submissions relating to the employment and accommodation pressures in the major cities… resulting in high numbers of vulnerable IDPs within the country placing additional pressure on the major urban areas. I accept that there are economic pressures throughout the country, and that inadequate shelter, food insecurity, insufficient access to sanitation and health facilities, as well as a lack of protection, often result in precarious living conditions.
The Authority concluded that, notwithstanding these conditions, the applicant had
… demonstrated a clear ability to relocate within the country (previously relocating from Maidan Wardak to Kabul) and that he is capable of finding work in construction and providing financial support, accommodation and access to education for his family. I consider the applicant is in a far superior position to many IDPs, in that he has trade skills (rendering), farming experience, some language skills, and family support in the country (albeit in Kabul).
At paragraph [89] the Authority acknowledged the “difficulty for people relocating and reintegrating into areas where people do not have associates” and referred to a paper by Professor Maley expressing the opinion that a Hazara who is “returned to a region in which he lacks strong social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation”. As noted, the Authority apparently concluded that the applicant fell into a category not likely to suffer such a fate: “single able-bodied men of working age without specific vulnerabilities”.
The Authority concluded that, notwithstanding these matters, the applicant - and his family - could reasonably relocate. The Authority’s reasoning at paragraph [91] was as follows:
… I am satisfied he could find paid work that would sustain him and his family. In finding work, I also consider the city would provide access to accommodation, education and essential services. I find these are significant factors that suggest it would be reasonable for the applicant to relocate within the country, and that within the context of Mazar-e-Sharif, he would be able to overcome the lack of family or tribal networks.
There is no further elaboration or description of the Authority’s reasoning.
In MZANX, Mortimer J said of the assessment of the practicability and reasonableness of relocation:
50It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 (SZATV) at [24] the plurality said:
What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
51 In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
In MZANX her Honour, by way of illustration, pointed out that in the case of an applicant with young children the assessment would involve an assessment of the availability of health care and the kind of available housing. In my view, in the case of school age children the assessment would also necessitate consideration of what educational facilities would be available. In the case of the applicant and his family relocating from Kabul to Mazar-e-Sharif, there would need to be some consideration, involving a level of detail, of how he would manage in the absence of family or tribal networks.
In my view, the passage quoted from the Authority’s reasons merely states a conclusion. It does not mention the particular circumstances of the applicant and his family apart from the fact that the applicant is a single man, has a skill as a renderer and had relocated previously within Afghanistan. The applicant’s “objections” were acknowledged to be persuasive but, in my view, the Authority’s consideration of them does not go beyond generalities and falls well short of the process required.
I am satisfied the decision involves jurisdictional error.
As noted, during argument I raised with counsel for the Minister my concerns about the decision. Counsel, who is both competent and efficient, indicated that he was ready to argue the matter. While no formal amendment was sought by the applicant the parties were content to proceed.
The applicant has succeeded on a ground he did not raise but which was raised by the court. In the circumstances I will take short written submissions from the parties within 14 days as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 24 June 2021
4
0