BHB16 v Minister for Immigration
[2016] FCCA 2566
•5 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHB16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2566 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division – Protection (Class XA) visa – whether the Tribunal applied the correct test in determining whether the applicant was entitled to protection – whether the Tribunal correctly complied with s.36(2B)(c) – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 36(2B)(c), 476. |
| Applicant: | BHB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1334 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 5 October 2016 |
| Date of Last Submission: | 5 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes Mr S Jayasuriya |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Leave to the Applicant to file in Court the amended application dated 21 September 2016 and the need to file the document electronically is dispensed with.
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,865.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1334 of 2016
| BHB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 Administrative Appeals Tribunal (“the Tribunal”) made on 27 April 2016 affirming a decision of the delegate not to grant the applicant Protection (Class XA) visa.
The applicant was found to be a citizen of Afghanistan. The applicant was found to be a Shia Hazara, and feared persecution based on his faith as a Shia Muslim and a Hazara, by reason of an imputed political opinion, and by being a failed asylum seeker and returning from a Western country.
The applicant feared harm from ISIS (“DAESH”) or other extremist, or insurgent groups, or the State. The applicant advanced a particular incident in 2010 that he alleged occurred whilst travelling on a road to Kabul.
The Delegate’s Decision
On 2 August 2013, the delegate found that the applicant’s fear of persecution, as defined under the Refugees Convention, was not well-founded, and was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason.
The delegate was also not satisfied there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there was a real risk the applicant would suffer significant harm.
The Tribunal’s Decision
The applicant applied for a review on 8 August 2013. By letter dated 11 December 2015, the applicant was invited to attend a hearing on 15 February 2016. The applicant appeared on that date to give evidence and present arguments. The applicant was assisted by an interpreter and his migration representative attended the hearing.
The Tribunal’s reasons refer to the applicant as having appeared on 8 February 2016. It is common ground that this was a typographical error in the reasons of the Tribunal. The Tribunal identified the relevant law and set out the applicant’s claims and evidence.
Consideration of claims and evidence
The Tribunal had a subheading in relation to a finding as to whether the applicant was a citizen of Afghanistan, and then had a subheading, “Where is the applicant’s home area in Afghanistan?” Although the applicant was born in a different area and had lived for a period of time in Iran, the applicant was found to have moved to Kabul at eight years of age and was found to have lived in Kabul up until 1988, then lived in Kabul from 2001 until 2011. The applicant was found to have owned his own house which he sold before departing in 2011.
The applicant departed Afghanistan in October 2011 and arrived on Christmas Island as an Irregular Maritime Arrival on 21 February 2012.
The Tribunal made reference to the fact that on his evidence, the applicant had spent most of his life in Kabul when living in Afghanistan, and that that was the place from which the applicant had fled, and that he had not lived at the place where he had been born for a substantial period, and that he had no connection with the place where he was born. Following which, the Tribunal found that the applicant’s home area in Afghanistan from where the applicant’s claim should be assessed to be Kabul.
The Tribunal made adverse findings in relation to the applicant’s explanation for why he left Afghanistan, and in that regard found the applicant had not been a credible witness and had fabricated evidence regarding the reason he departed Afghanistan in 2011.
The Tribunal did accept certain aspects of the applicant’s evidence, in particular that the applicant had worked as a panel beater in Kabul from 2001 until approximately 2009, when he then bought a taxi and began driving the taxi in 2010 and continued to earn his livelihood as a taxi driver until his departure from Afghanistan in 2011. The Tribunal also accepted that the applicant had been taking antidepressant medication for approximately six months.
The Tribunal did not accept that the applicant was ever stopped by the Taliban in 2010, was accused of giving the Afghan Army information as to the Taliban whereabouts, had his throat cut, was taken to a valley and escaped, or that his mother died on seeing his throat. The Tribunal did not accept that the Taliban ever came in search of the applicant by stopping a driver, asking as to his whereabouts, or visiting his home.
The Tribunal did not accept that the Taliban had the applicant’s identity, photograph or his address, or knew anything about him, or that he has any profile with the Taliban for any of the reasons the applicant claimed. The Tribunal did not accept that the applicant would be perceived as a spy, as an insurgent working for the army and/or working for the government. The Tribunal did not accept that the applicant sold his home or fled Kabul as he feared the Taliban for the reasons that the applicant claimed.
In making the adverse findings in respect of the applicant’s evidence, the Tribunal took into account the applicant’s psychological problems. The Tribunal expressly referred to having considered a psychologist’s report. That was a report by a registered psychologist, dated 21 February 2016 in which the registered psychologist summarised the applicant’s alleged current circumstances and opined as to the type and cause of any current mental health condition affecting the applicant, in the course of which the psychologist said that the psychologist believed the applicant:
Needs psychiatric and psychological help and as such I will be referring him to a psychiatrist through his local Mental Health Services this week for review of his medication, which I feel is only very slightly helping and would benefit from a full psychiatric assessment.
The psychologist purported to opine on problems with the applicant’s evidence, and further opined in relation to the applicant’s current psychological condition. The Tribunal referred to the evidence that the applicant had been on anti-depressants in the past six months, and accepted that the applicant was currently depressed.
The Tribunal was satisfied that the applicant was able to participate effectively and articulate his claims at the time of his Department interview. The Tribunal noted that the applicant was not seeing a psychologist at the time of the application for a protection visa and did not see one until after the hearing before the Tribunal.
The Tribunal noted that there was no comment in the report or by his doctor about his mental state at that time or at the entry interview, or at the time of his writing of his statement or at the time of the Department interview. The Tribunal noted that the concerns in relation to the applicant’s mental state was only a recent claim, and noted that the applicant was not on medication at the time of the Department interview or at the time of making his written statement to the Department. The Tribunal was of the view that the evidence at those times was not affected by any alleged mental illness or psychological issues or that the applicant was forgetful.
The Tribunal made reference to the effect on the applicant of his current mental condition. The Tribunal noted that the ability of the applicant to maintain employment in Australia and save $40,000.00 and run his own business in Afghanistan undermines the psychologist’s view of learning and long term cognitive impairment.
The Tribunal accepted that the applicant was depressed and on medication. However, the Tribunal found that the applicant was cogent and logical in his evidence, and found that the applicant had a capacity to give evidence. The Tribunal found the applicant was able to give detailed evidence as to where he had lived in the past and when he had travelled to Iran, and his background evidence and claims at the hearing before the Tribunal.
The Tribunal referred to the inconsistencies in the applicant’s evidence. The Tribunal did not accept that the applicant’s mental state explained or excused the concerns which cumulatively, led the Tribunal to find that the applicant was not a reliable witness as to the reasons why he departed Afghanistan.
The Tribunal also made reference to taking into account independent country information as to the difficulties being faced by Hazaras travelling on the roads outside Kabul in Afghanistan, and that the independent country information did not indicate that all Hazaras travelling on the roads are targeted.
Consideration of the protection obligation for a Refugees Convention reason.
The Tribunal made credibility findings and did not accept that the applicant was ever stopped by the Taliban and faced difficulties as claimed in 2010. The Tribunal did not accept that the applicant’s scar on his neck was caused by the incident he claimed.
The Tribunal found that the applicant did not have on the evidence before it now or in the reasonably foreseeable future, a well-founded fear of persecution as a spy, government supporter, a person opposed the Taliban or any insurgent group as a result of the applicant advising the army of the whereabouts of the Taliban in 2010, being stopped by the Taliban in 2010, or escaping from them or any of the reasons that the applicant claimed.
The Tribunal then turned to the issue of the applicant being a Hazara Shi’a. The Tribunal identified the applicant’s claim that as a Hazara Shi’a Muslim, the applicant faced persecution at the hands of the Taliban, ISIS (DAESH) and other extremists. The Tribunal referred to the country information and found that there was little community prejudice or social discrimination that would limit opportunities for Shi’a Muslims in daily life on the basis of their Shi’a faith. The Tribunal made reference to a DFAT report, commenting that ethnic based violence in Kabul is rare, and that Sunni-Shia violence was infrequent in Afghanistan.
The Tribunal expressly referred to a particular incident that had occurred in Kabul. The Tribunal accepts that the applicant, as a Shi’a, will attend mosques and religious events; however, considered as a whole on the available country information, the Tribunal found the chance the applicant will be seriously harmed by attending a mosque or a religious event was remote.
Having considered the evidence and information before it, the Tribunal did not accept that there is a real chance the applicant would suffer serious harm as a result of Sunni-Shi’a sectarian violence if he returns to Afghanistan now or in the reasonably foreseeable future, or that the applicant would be subject to serious harm for the reasons of his Shi’a faith, including by attending a mosque or a religious event, or any associated or related reason.
The Tribunal then referred to the applicant’s Hazara ethnicity, and was of the view that this was not a reason or a credible basis to consider that the applicant would need to undertake employment or receive education or visit family that would necessitate him undertaking journeys on roads outside Kabul.
The Tribunal made reference to the applicant’s family living in Iran. While the applicant had operated a taxi, driving to his place of birth one or two days a week, the Tribunal noted the applicant was able to earn a living in Kabul as a taxi driver in the six plus months before he departed Kabul. The Tribunal made reference to the applicant having nothing left in his place of birth.
The Tribunal then made reference to the country information in relation to conditions to Kabul. The Tribunal then referred to the applicant having depression and having seen a GP and being on medication for depression, which he had taken for the six months prior to the hearing. The Tribunal again made reference to the psychologist that saw the applicant after the hearing, and the consideration of that report by the Tribunal.
The Tribunal found that basic public healthcare in Kabul was free, though medicines are not, which excludes the poor for treatment of common illnesses. The Tribunal also noted information indicates that medical facilities in the public system whilst basic tend to be better in Kabul than other areas in Afghanistan. The Tribunal made reference to the poor state of the country and large parts of Kabul being extremely poor, and noted that the applicant had saved AUD$40,000.00 while working in Australia.
The Tribunal made reference to the fact that even though the applicant’s family had departed Kabul, the applicant was a male of working age who had worked for the last three years in Australia, and had achieved savings of AUD$40,000.00. The Tribunal was of the view that the applicant would have extensive contacts from having lived in Kabul for 10 years from 2001 to 2011. The Tribunal accepted that the applicant was illiterate. However, the Tribunal noted that he had been able to provide for himself and his family while living in Kabul, and had been able to work and earn a living in Australia.
The Tribunal made further reference to the applicant’s ability to earn a living working as a taxi driver in Kabul. The Tribunal noted that information before the Tribunal did not support in the past Hazaras or Shi’a Muslims had been subjected to harm while travelling on roads within Kabul. Accordingly, the Tribunal found that in the applicant’s circumstances, there is not a real risk the applicant would suffer serious harm while travelling on roads in Kabul.
In light of the evidence and submissions concerning the overall situation for Hazara Shi’a Muslims in Kabul, and on the information provided that the government maintains effective control of Kabul, the Tribunal did not accept in the applicant’s particular circumstances there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future in Kabul for reasons that he is a Hazara or because he is Hazara Shi’a Muslim, or a Hazara male, or a Shi’a or because of any associated political opinion that would be imputed to him on account of any of those factors, attributes or characteristics from or on behalf of the Taliban, ISIS (DAESH) or other extremist or insurgent groups or the State or any other person or group.
The Tribunal expressly referred to taking into account that the applicant has some mental issues and is taking medication for depression. The Tribunal found that having carefully considered the information and evidence before it, the Tribunal did not accept that the applicant’s mental health issues, illiteracy and/or ethnicity, either by themselves or in combination, would make him more vulnerable to harm. The Tribunal did not accept that there is a real chance the applicant would suffer serious harm for any of those reasons, including in combination.
The Tribunal made reference to the withdrawal of international forces, and did not accept that this would cause the applicant to suffer serious harm in Kabul for any of the reasons advanced in the reasonably foreseeable future.
The Tribunal made reference to insurgency attacks on Kabul and made reference to the context of Kabul having a population of four million people and that the government maintains effective control of Kabul and has a range of countermeasures in place to prevent and respond to insurgent attacks. The Tribunal took into account that the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks often cause significant casualty amongst civilian bystanders. The Tribunal took into account that civilian casualties have increased as international forces withdrew.
The Tribunal found on the available country information that while there is crossfire and insecurity in Kabul and bystanders are often caught up in the violence, the Tribunal found it is targeted against someone else. The Tribunal found that it is not and will not be targeted at the applicant for reasons of his race, membership of a particular social group, political opinion, nationality, and that it is therefore not Convention related.
The Tribunal then made adverse findings in relation to the applicant’s fears as a failed asylum seeker returning from the west. Those adverse findings include taking into account the applicant’s depression. The Tribunal found that the chance the applicant would suffer serious harm, for reasons of being a returnee from a Western country, or for being a failed asylum seeker, or a failed Hazara asylum seeker or returning from a Western country a wealthy person, is remote.
The Tribunal did not accept that there is a real chance the applicant would be persecuted because of the length of time he had spent outside Afghanistan, or the time he had spent in Australia, or because he would be a failed asylum seeker, a Hazara who applied for asylum in a Western country, or as a result of his savings.
The Tribunal then made reference to considering the reasonableness of expecting the applicant to remain in Kabul. The Tribunal took into account the applicant’s personal circumstances and made reference to the fact that whilst the applicant had travelled outside Kabul to his place of birth that was only for a short period, which ceased. The Tribunal noted the applicant had not claimed to have any family outside Kabul, and that the applicant had said there was nothing left for him at his place of birth.
The Tribunal found that there was no reason why the applicant would or could reasonably be considered to need to leave Kabul to travel elsewhere in Afghanistan. The Tribunal found that Kabul had better economic opportunities and medical facilities than the rest of the country. The Tribunal noted the applicant had not claimed that he would face better economic opportunities outside Kabul. The Tribunal made reference to medical facilities and psychological help being better in Kabul.
The Tribunal expressed the view that there would be no reasonable or credible reason to consider that, the applicant would need to leave Kabul for work or educational opportunities or medical reasons. It was in those circumstances that the Tribunal considered that it was reasonable for the applicant to remain in Kabul to re-establish his life and seek employment.
The Tribunal then again made reference to the government maintaining effective control, and did not accept that there was a real chance the applicant would suffer serious harm in Kabul in the reasonably foreseeable future by the Taliban, ISIS or other extremist or insurgent group or person, or by the State, or any other person or group for reason that he is a Hazara Shi’a Muslim, or for reasons he would be a returnee from the west, a failed asylum seeker or a failed Hazara asylum seeker, or for any political opinion imputed to him on account of any of those factors, attributes or characteristics.
The Tribunal found that there was not a real chance that the applicant would suffer serious harm for a Convention Reason if he returns to Afghanistan now or in the reasonably foreseeable future. The Tribunal found that the applicant did not have a well-founded fear of persecution in Afghanistan.
Complementary Protection Assessment
The Tribunal then turned to the issue of complementary protection. The Tribunal made reference to insurgent attacks on Kabul and the rest of Afghanistan. The Tribunal made reference to the independent information indicating the gradual withdrawal of international forces and the increase in conflict and civilian casualties.
The Tribunal found the primary targets for insurgent attacks are government institutions, political figures, military, other security services and international organisations and that such attacks while not directed at them, often cause significant casualties among civilian bystanders.
The Tribunal found that the applicant was not a target of those attacks. The Tribunal found that the applicant may only be harmed in such attacks as a bystander as with the rest of the population of Afghanistan. The Tribunal found that there was not a real risk the applicant would suffer serious harm, because the real risk is one faced by the population of the country generally and is not faced by the applicant personally.
The Tribunal made reference having considered the country information and the applicant’s circumstances and found that the problems that the applicant faced upon return, as a result of crossfire and insurgency violence, do not constitute significant harm under s.36(2B)(c) of the Act as the real risk is one faced by the population of Afghanistan generally and is not faced by the applicant personally.
The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan, there is a real risk the applicant would suffer significant harm.
The Tribunal found that the applicant did not meet the criterion under s.36(2) of the Act, and affirmed the decision of the delegate.
Proceedings Before this Court
The grounds of the application are as follows:-
1. The Tribunal made an error of law and asked the wrong question.
Particulars
a. In determining whether Australia owed protection obligations to the applicant, the Tribunal applied a legal test whereby his claims were assessed “against his home area” which it found to be Kabul: at [31].
b. The Tribunal found that Hazaras, like the applicant, faced risks in other parts of Afghanistan: at [75].
c. The Tribunal did not make any finding that those risks in other parts of Afghanistan were reduced, and that the applicant was unlikely to be harmed in the future as a result of those risks.
d. In light of that, it was insufficient for the Tribunal to determine the applicant's claims of harm on the basis of his ethnicity simply by finding that that harm would not occur to him in Kabul.
e. In the premises, the Tribunal failed to apply the correct test. See AFD15 v Minister for Immigration [2015] FCCA 3175.
2. The Tribunal erred in its interpretation of s.36(2B)(c) of the Migration Act.
Particulars
a. Error in equating personal risk to “a bystander" and “the problems [the applicant] faces upon return as a result of cross fire and insurgency violence” with the “population of Afghanistan generally”: see [111].
3. Further and in the alternative to ground 1, in considering whether it was reasonable for the applicant to remain in Kabul, the Tribunal (a) failed to consider or properly consider an impediment raised by the applicant, namely whether he could obtain the psychiatric and/or psychological help he requires in Kabul; and (b) made a finding without evidence.
Mr Hughes, Counsel on behalf of the applicant tendered into evidence the PAM 3 Protection Visas – Complementary Protection Guidelines which was marked “Exhibit A” and tendered the House of Representatives Migration Amendment (Complementary Protection) Bill 2011 Second Reading Speech dated Thursday, 24 February 2011.
Consideration and Conclusion
In relation to Ground 1, Counsel on behalf of the applicant, contended that the Tribunal had asked itself the wrong question and had failed to apply the correct test in determining whether the applicant was entitled to protection as a refugee under s.36(2)(a) of the Act. The argument advanced drew attention to the Tribunal’s reasons, in which the following sentence appears at para 31:-
On the basis of the applicant’s evidence that he has spent most of his life in Kabul when living in Afghanistan, it is from where he fled, he has not lived in his country of birth for 28 years and he has no connection to his country of birth except being born there, I find his home area in Afghanistan from where his claims should be assessed to be Kabul.
In substance, Mr Hughes argued that the Tribunal had then confined itself, in assessing whether the applicant was a refugee, to fears in Kabul rather than the applicant’s fears in Afghanistan. Attention was drawn to the Tribunal’s findings and in particular, findings about the reasonableness of the applicant to be able to remain in Kabul to re-establish his life and to seek employment.
It was submitted notwithstanding the reference to Afghanistan in the ultimate findings of the Tribunal, that the Tribunal had misdirected itself and confined its task to a consideration of the applicant’s claims in Kabul.
It was further submitted that the Tribunal had inappropriately considered in substance, a relocation question before determining whether the applicant feared persecution for a Convention Reason, and whether that fear was well-founded.
The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole. On a fair reading of the Tribunal’s reasons, the Tribunal addressed the applicant’s claims and I reject the submission that the Tribunal failed to apply the correct test in determining whether the applicant was the subject of a real chance that he would suffer significant harm for a Convention Reason if he was returned to Afghanistan. The Tribunal correctly identified the relevant law. I reject the submission that the Tribunal applied the wrong test in determining whether the applicant had a well-founded fear of persecution in Afghanistan.
Taking into account the applicant’s home area, was a relevant consideration for the Tribunal in considering the applicant’s personal circumstances and attributes in assessing the applicant’s claims.
On a fair reading of the Tribunal’s reasons as a whole, para 31of the Tribunal’s reasons should not be read as the Tribunal confining the applicant’s claims to Kabul. The Tribunal’s reasons reflect a broader consideration in relation to the applicant’s claims as advanced. No jurisdictional error of the kind mentioned in Ground 1 is made out.
In relation to Ground 2, s.36(2B)(c) of the Act, Counsel for the applicant submitted that the Tribunal had in substance, introduced an imputed condition that the applicant had to be the subject of being singled out or targeted. This submission was based on a reading of the Tribunal’s reasons to the effect that the Tribunal had introduced a requirement that the applicant had to be targeted or singled out in order not to fall within s.36(2B)(c) of the Act. The Tribunal’s reasons do not support any such error.
On a fair reading of the Tribunal’s reasons, the Tribunal correctly focused on whether the insurgency attacks and consequential civilian casualties were a real risk faced by the population of the country generally and not by the applicant personally. To the extent that it was submitted that the Tribunal had confined itself to Kabul, that is contrary to the language used by the Tribunal. There is no jurisdictional error identified in Ground 2.
Ground 3 focused upon the psychologist’s opinion about the need for psychiatric and psychological help. The Court was taken to the different language used by the Tribunal referring to public health, as well as medical facilities and psychological help. The submission was advanced that the Tribunal had failed to take into account and consider the need by the applicant for psychiatric help.
The Tribunal expressly referred to the psychologist’s report on more than one occasion in its reasons. The reference by the Tribunal to public health, as well as mental facilities and psychological help should not be read with a keen eye for error.
On a fair reading of the Tribunal’s reasons, in considering whether it was reasonable for the applicant to re-establish his life and seek employment in Kabul, the Tribunal took into account the fact that the applicant had been the subject of an opinion that he may need psychological and psychiatric help. To the extent it was submitted that it was not open to the Tribunal to find that it would be reasonable for the applicant to remain in Kabul, this was is in substance an impermissible merits review of the adverse findings of fact by the Tribunal that were open on the material.
The proposition that there was no evidence to support the adverse findings by the Tribunal in relation to the reasonableness of the applicant’s ability to re-establish his life in Kabul is founded upon a narrow reading of the Tribunal’s reference to the public health system in Kabul or public healthcare in Kabul. There is no warrant for implying such a limitation. The Tribunal’s reasons reflect a careful consideration of the psychologist’s report and the applicant’s mental health.
I accept the submission of the first respondent that there was no independent claim that the applicant feared that he could not obtain psychiatric help. It was not necessary for the Tribunal to make express findings in respect of a claim that was not advanced. Given the applicant’s personal circumstances identified by the Tribunal, it was appropriate for the Tribunal, and relevant, to make a finding as to whether the applicant could remain in Kabul, and the reasonableness in that regard.
The finding of fact made by the Tribunal in that regard was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind alleged in Ground 3 is made out.
The amended application is dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 1 December 2016
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