BHE17 v Minister for Immigration

Case •

[2017] FCCA 3003

•

5 December 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3003
Catchwords:
MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – whether the Authority failed to consider the applicant’s claims – whether the Authority failed to consider all of the relevant circumstances relating to relocation – whether the Authority misconstrued the legislation – no jurisdictional error identified – application dismissed.

Legislation:

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

Cases cited:

AHI16 v Minister for Immigration [2016] FCCA 3140
Applicant: BHE17
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 915 of 2017
Judgment of: Judge Street
Hearing date: 5 December 2017
Date of Last Submission: 5 December 2017
Delivered at: Sydney
Delivered on: 5 December 2017

REPRESENTATION

Counsel for the Applicant: Mr S Tully
Solicitors for the Applicant: Ryburn Solicitors
Solicitors for the Respondents: Ms K Hooper
HWL Ebsworth Lawyers

ORDERS

  1. The application is dismissed.

  2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 915 of 2017

BHE17

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority) under Part 7AA, made on 17 February 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

Claims for protection

  1. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 17 November 2012. The applicant applied for a Safe Haven Enterprise visa on 4 February 2016. In summary, the applicant claimed to fear harm by reason of being a Hazara Shia from a particular location. The applicant claimed he could not return to Afghanistan because he is at risk of being killed by the Taliban due to his race being Hazara and his religion being Shia. The applicant claimed travelling along roads in Afghanistan was very dangerous as militant groups including the Taliban were readily killing and harming Hazaras.

  2. The applicant claimed, if he was returned to Afghanistan, he was afraid that the Taliban and other armed groups would subject him to serious harm because of his race and religion. The applicant also claimed he feared serious harm by the Taliban and other armed groups because he has sought asylum in a western country and that they would accuse him of spying for western countries. The applicant also claimed that he had lived outside of Afghanistan most of his life and was afraid he will not be accepted in the community in Afghanistan and the applicant claimed he would not be protected by the authorities.

  3. On 7 September 2016, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Act.

The Authority’s decision

  1. By a letter dated 13 September 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified that there were limited circumstances in which the Authority could consider new information. The Authority’s letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information.

Submissions of 5 October 2016

  1. On 5 October 2016, submissions were provided to the Authority enclosing a statement by the applicant. The statement had a summary titled “Fears Upon Forcible Return to Afghanistan”, which included reference to his fear by reason of being a failed asylum seeker from western nations and/or being imputed with a political opinion for being part of a group of failed asylum seekers from western nations.

  2. That statement had a further heading “My fears if I am forcibly returned to Afghanistan” under which it referred in paragraph 68 to the Taliban being active all over Afghanistan and the Taliban intelligent network is sophisticated, active and well-established, that they  communicate information right across the whole country including Kabul, and that there is little difficulty for the Taliban identifying any individuals who they deem as infidels, spies, enemies or who are otherwise on their blacklist.

  3. The statement continues to identify the Taliban do not only have their military forces, they refer to Afghanistan as the Emirates of Afghanistan and have their own executive department and an effective system for identifying Hazara people and their originating villages and places of work.

  4. The applicant referred to being identifiable as a Hazara. The applicant continued and identified that he feared to be killed or kidnapped for ransom or otherwise significantly harmed by the Taliban for being a returned asylum seeker from a western country. The applicant also provided submissions on 5 October 2016 annexing a schedule of recent articles.

Further submissions

  1. Further submissions were provided on 10 October 2016 annexing various articles. On 10 October 2016, further information including DFAT information was provided to the Authority on behalf of the applicant. On 19 October 2016, further articles were provided.

Invitation to comment

  1. On 24 October 2016, the Authority wrote to the applicant inviting the applicant to comment on certain country information and identifying a timeframe for those comments to be received by 7 November 2016. On 7 November 2016, further submissions were provided on behalf of the applicant to the Authority quoting various sections of country information.

  2. On 8 November 2016, further submissions were provided including in respect to relocation and referring to further submissions to be provided relating to Mazar-e-Sharif. On 9 November 2016, further submissions were provided to the Authority in respect of relocation to Mazar-e-Sharif. On 9 November 2016, further articles were provided on behalf of the applicant to the Authority which also included a statutory declaration as well as a submission letter dated 17 July 2014.

  3. On 9 November 2016, a further submission was provided in relation to relocation to another province. On 12 November 2016, a further submission was provided and attached a media article. On 12 November 2016, a further submission was advanced by the applicant providing a further media article. On 23 November 2016, the applicant provided to the Authority “an Amended Schedule - Attacks in Kabul”, with a report of Professor Maley of 22 November 2016 and attaching copies of articles.

Further invitation to comment

  1. By letter dated 2 December 2016, the Authority wrote to the applicant inviting the applicant to comment on country information in relation to the applicant’s ability to relocate to Mazar-e-Sharif. The letter identified that comments should be received by 16 December 2016.

  2. On 17 December 2016, submissions were provided in respect of combined media articles provided to the Authority. On 17 December 2016, a further set of combined articles was provided with a statement similar to that sent earlier that day stating that, “The submission in response to the IAA request for comment on 1 December 2016 will follow.” It was clearly a reference to the 2 December  2016 letter.

  3. On 18 December 2016, a further combined set of articles was provided and again, it was repeated that, “The submission in response to the IAA for comment on 1 December 2016 will follow.”

  4. On 19 December 2016, further combined articles were provided and, again, a statement similar to the earlier letters in response to the 2 December 2016 letter foreshadowing a submission in response to the request for comment will follow. On 19 December 2016, a further set of articles was provided together with the same statement in relation to a submission response to the request for comment will follow. On 19 December 2016, a further submission was sent which expressly described itself as being in response to the invitation to comment as regards relocation and country information.

  5. Those submissions purported to address the issue of the applicant’s relocation in the Balkh province to Mazar-e-Sharif. On 22 December 2016, further submissions were provided on behalf of the applicant to the Authority purportedly in response to the IAA request for comment on 1 December 2016. On 10 January 2017, a further submission was provided on behalf of the applicant to the Authority which referred to, “Please find attached an Updated Combined pdf Set of Recent News Articles regarding Gulbuddin Heymatyar” The email repeated the same sentence that had been inserted before: “The submission in response to the IAA request for comment on 1 December 2016 will follow”.

  6. There was clearly an error in the email in circumstances where the response had already been sent. Nothing in the email identified that this was in further response to the letter of 2 December 2016 or explaining why the material should be received as new information falling within s 473DD. A further submission was sent on 13 January 2017 providing combined articles. Again, the same sentence was repeated that a submission will follow in respect of the 1 December 2016 letter. Again, the email is patently erroneous. Again, no submission was provided as to why the information meets the criteria under s 473DD.

  7. On 30 January 2017, a further submission was provided which attached updated articles concerning political rivals of the Vice President, referring to the new President in office, and an opinion in relation to the current security situation. Again, there was a repetition of the same sentence, clearly erroneous, in relation to the submission response to the IAA request for comment on 1 December 2016 would follow. Nothing in the email of 30 January 2017 identified itself as being in response to the letter of 2 December 2016 nor was there any submission advanced as to why there was new information within s 473DD.

  8. On 9 February 2017, a further amended schedule of attacks in Kabul was provided to the Authority with copies of the articles.

Information before the Authority

  1. The Authority, in its reasons, identified the background to the visa application. The Authority identified that it had regard to the information referred under s 473CB. The Authority identified the various submissions that were advanced and, in particular, identified the considerations referrable to ss 473DC and 473DD in determining whether or not to have regard to the material that was provided.

  2. On a fair reading of the Authority’s reasons, it is apparent that the Authority took into account the whole of both limbs of s 473DD in considering what was identified as new information. The Authority expressly refers to whether or not information could have been provided prior to the delegate’s decision and why the information may be considered credible personal information as to whether there is an explanation as to how the information is pertinent to the applicant’s case.

  3. In paragraph 13, the Authority referred to the letters sent inviting the applicant to comment dated 24 October 2016 and 2 December 2016 and identified the information provided in response and was satisfied that there were exceptional circumstances to justify considering it. The Authority then referred to the submissions provided on 10 January 2017 and 30 January 2017 and the content of the Authority’s reference identifies the Authority understood the substance of what was provided as the Authority refers to political figures in the Balkh province as well as the opinion article.

  4. The Authority referred to the information relating to political figures in Afghanistan and the Balkh province and found the same constituted new information that was provided in response to the invitation previously. The Authority referred to the opinion piece being also new information. The Authority identified that other than providing an update on the political situation, the representative had not advised how these articles are relevant to the consideration of the applicant’s claims. That is a reference by the Authority clearly to the second limb in s 473DD(b)(ii). The Authority was not satisfied that there are exceptional circumstances for considering that information.

  5. On a fair reading of the Authority’s reasons, the Authority identified that the information was not one which the Authority found was relevant, in that, it could have affected the consideration of the applicant’s claims. The Authority’s reasons are not to be read with a keen eye for error in reference to the applicant’s claims. It is clearly a reference to the second limb in s 473DD. It was a matter for the Authority to determine whether or not information was relevant that may have affected the consideration of the referred applicant’s claims. That finding was a finding made by the Authority within its jurisdiction. It was open to the Authority to make such a finding.

  6. This is not a case where there is any basis to find that the Authority adopted an erroneously narrow meaning of the term “exceptional circumstances” nor, on the face of the Authority’s reasons, is it open to find that the Authority failed to have regard to both limbs of s 473DD.

Refugee assessment

  1. The Authority proceeded to identify the applicant’s claims and, in particular, referred to the applicant fearing harm from Pashtuns, the Taliban and other armed groups as a Shia Hazara and due to his imputed political opinion as a failed asylum seeker, who has lived in a western country and will be accused of spying. The Authority also referred to the applicant having lived most of his life out of Afghanistan. The Authority referred to the applicant’s claims of fear of harm on return to Afghanistan and his claim that his lengthy absence from Afghanistan, compounded with his stay in Australia, will impute him with a pro-Western political opinion and, as he is perceived as a spy, he will be targeted by the Taliban and other anti-government elements.

  2. The Authority referred to the security situation on the roads between Kabul and Jaghori and was satisfied the applicant faced a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to Jaghori if he were to return there. The Authority identified that under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Authority was not satisfied the applicant has a well-founded fear of persecution in Mazar-e-Sharif. The Authority identified Mazar-e-Sharif being the capital of the Balkh province and one of the biggest commercial and financial centres in Afghanistan and being regarded as one of the safest cities in Afghanistan and much safer than Kabul with relevant security of the province being attributed to a monopoly on power even in the province’s most remote regions held by ethnic-Tajik governor and former warlord Atta Mohammad Noor.

  3. The Authority referred to the fact that there had been a number of attacks in Mazar-e-Sharif where civilians have been victims. The Authority found, however, the applicant, as a Shia Hazara, has not been directly associated with any of the groups who are targets for insurgents and does not have an imputed profile as a government affiliate even as a returnee from the West, which would be likely to bring him to adverse attention. The Authority was satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 did not indicate that the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif in the reasonably foreseeable future.

  4. The Authority referred to the applicant’s personal circumstances and that he had lived most of his life outside of Afghanistan and has no family there. The Authority accepted that the applicant may be subject to discrimination on return in relation to employment as a consequence of nepotism, particularly as he does not have family links in Mazar-e-Sharif, where he has not lived before.

  5. The Authority found, however, that Shia Hazaras still form a significant minority group in Mazar-e-Sharif. The Authority was not satisfied there is a real chance, as a consequence of societal discrimination, that the applicant would be denied the capacity to earn a livelihood, or that he would be subject to economic hardship such as would threaten his capacity to subsist, or otherwise suffer treatment that may be considered serious harm within the meaning of s 5J of the Act.

  6. The Authority made reference to the fact that many Afghans travel abroad to Iran, Pakistan, Europe and other western countries to seek employment or education opportunities. The Authority identified between 2002 and 2013, 5.8 million refugees returned to Afghanistan from Iran, Pakistan, as well as western countries. The Authority referred to returnees from western countries being almost exclusively returned to Kabul and that country information indicates that there is an international airport in Mazar-e-Sharif accepting flights from Kabul and international locations. The Authority referred to a UNHCR article in April 2016 indicating individuals who are perceived to have adopted values and/or appearances associated with western countries, due to their imputed support for the government and the international community are reportedly targeted by anti-government elements on the grounds that they had become foreigners or that they were spies for a western country. The Authority made reference to the reports and incidents cited by UNHCR, not referring to Mazar-e-Sharif as an area where returnees are targeted on the basis of being perceived as Western.

  7. The Authority made reference to accepting that the applicant is a person who has lived most of his life in Quetta, Pakistan, and that the applicant may face difficulties in Mazar-e-Sharif. The Authority found that there is no evidence to indicate that a person, like the applicant, who has lived in Pakistan for a significant period of time, and in a western country, are targeted in Mazar-e-Sharif by insurgents, or that the applicant will be targeted on return to Mazar-e-Sharif as a Hazara Shia returning with an imputed pro-Western political opinion.

  8. The Authority found the applicant does not have the affiliations with international organisations or the Afghan Government, which would raise his profile in Mazar-e-Sharif and lead to him being specifically targeted by insurgents for a pro-Western political opinion. The Authority found it was not satisfied the applicant would be imputed with an adverse political opinion in Mazar-e-Sharif, or a Hazara Shia who resided in a western country. Whilst the Authority only referred to not being satisfied the applicant would be imputed with an adverse political opinion, a fair reading reflects the Authority finding the applicant would not face harm as a Hazara Shia who resided in a western country.

  9. The Authority was not satisfied the applicant, as a Hazara Shia or a returnee / failed asylum seeker from the west, faces a real chance of persecution upon return to Mazar-e-Sharif in the reasonably foreseeable future. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria of s 36(2)(a) of the Act.

Complementary protection assessment

  1. The Authority was not satisfied that the applicant faces a real chance of significant harm in Mazar-e-Sharif. The Authority made express reference to the applicant’s personal circumstances and the discrimination that the applicant may suffer, which the Authority did not accept constitutes significant harm as defined in s 36(2A) of the Act. The Authority identified that it found there was not a real chance the applicant would face other forms of harm in Mazar-e-Sharif as a Hazara Shia and as the “real risk” test imposed the same standards as the “real chance” test, the Authority was not satisfied there was a real risk of the applicant suffering harm on return to Mazar-e-Sharif as a Hazara Shia.

  1. The Authority found that there is not a real chance that the applicant will face serious harm in Mazar-e-Sharif due to his imputed political opinion as a returnee / failed asylum seeker from the West. The Authority made reference to the “real risk” test imposing the same standard as the “real chance” test, but was not satisfied there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif in those circumstances. The Authority then turned to the general security situation and was not satisfied there is a real risk of the applicant facing significant harm on the basis of the general security situation in Mazar-e-Sharif for any reason.

Relocation

  1. The Authority was not satisfied there is a real risk of the applicant suffering harm on return to Mazar-e-Sharif and the Authority was satisfied that it was reasonable for the applicant to relocate there. The Authority took into account the applicant’s personal circumstances and the young age that he left and the numerous years that he had spent overseas. The Authority referred to the submission that the applicant would also be financially responsible for his siblings in Pakistan and, given his lack of viable social networks and limited education, it is likely that he will be unable to find employment and accommodation and would be unable to support himself and his family financially as he would be competing with any other similarly displaced Hazara Shias with limited skills and education. The Authority also referred to the submission that the living conditions for displaced persons, such as the applicant, are poor, with many individuals living in informal settlements without basic services.

  2. The Authority identified having regard to the submissions raised by the representatives and the country information in relation to the reasonableness of relocation. The Authority made reference to having considered the applicant being a single, but able-bodied, male of working age with no health problems or other specified vulnerabilities identified by the UNHCR as requiring durable support, including family or community support.

  3. The Authority found the applicant does not have family or tribal support in Mazar-e-Sharif and his family continued to reside in Pakistan. The Authority found that the applicant has the necessary skills to subsist in Mazar-e-Sharif.

  4. The Authority referred to country information and the applicant’s work history and found the applicant is resilient and resourceful and was satisfied the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif. The Authority was satisfied that the applicant has the skill, life experience and resilience to relocate and establish himself in Mazar-e-Sharif, where employment, accommodation and other services would be available to him.

  5. The Authority found it would be reasonable in the circumstances of the applicant to relocate to Mazar-e-Sharif, despite separation from his family. The Authority found it was reasonable for the applicant to relocate to Mazar-e-Sharif, where the Authority found he does not face a real risk of significant harm.

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

Proceedings before this Court

Grounds of the application

  1. The Grounds of the application are as follows:

    1. The IAA failed to consider one of the applicant's expressly-articulated claims.

    Particulars

    a. The applicant had claimed as a basis for persecution that he would be accused by the Taliban of spying for the west.

    b. This claim was identified by the IAA at [18] of its decision but not addressed in its reasons for decision.

    2. The IAA failed to consider all of the applicant's circumstances when considering the reasonableness of his relocation to Mazar-e-Sharif.

    Particulars

    a. The Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan dated 19 April 2016 from the United Nations High Commissioner for Refugees indicated that a lack of housing within Mazar-e-Sharif “often forces new and protracted [Internally Displaced Persons] to reside in informal settlements without an adequate standard of living and limited access to water and sanitation” (at p30).

    b. By his representative the applicant had claimed that living conditions for displaced persons including him were poor, with many individuals living in informal settlements and without basic services.

    c. This claim was noted by the IAA in its reasons for its decision (at [51]) but not addressed when considering the reasonableness of the applicant's relocation to Mazar-e-Sharif.

    d. Alternatively, the IAA failed to consider country information about attacks on Kabul airport, thereby committing a similar error to that identified in AHI16 v Minister for Immigration & Anor [2016] FCCA 3140.

    3. The IAA misapplied or misconstrued ss 473DC, 473DD and 473DF of the Migration Act 1958 (Cth) (the Act).

    Particulars

    a. At [14] of its reasons for decision, the IAA was not satisfied that there were exceptional circumstances for considering information about Balkh province because the representative had not described the relevance of that information to the applicant's claims.

    b. The information had been provided in response to an invitation from the IAA to provide information relating to the reasonableness of relocation to Mazar-e-Sharif.

    c. The IAA had previously found that this information was


    “new information”, and was therefore considered by it to be relevant by virtue of s 473DC(1)(b) of the Act.

    d. The IAA's misapprehension was the only stated basis for it not being satisfied about exceptional circumstances, and it thereby erred by not considering that information.

Consideration

Ground 1

  1. In relation to Ground 1, Mr Tully of counsel argued that the applicant had advanced an independent and separate claim as to a fear of being accused of spying in the west. On a fair reading of the material before the Authority, the applicant’s assertion of a fear arising from being accused of spying was derived by reason of him having lived in the west. On a fair reading of the Authority’s reasons, the Authority made a dispositive finding in respect of the applicant’s claimed fear of being accused of spying by reason of having lived in the west.

  2. The Authority made express reference in paragraph 38 to not being satisfied in relation to the applicant as Hazara Shia who resided in a western country. That is clearly a reference to being satisfied that the applicant does not face a real chance of persecution as a Hazara Shia who resided in a western country and subsumes the applicant’s claim in respect of his fear of being accused of spying.

  3. Mr Tully submitted that the applicant’s statement at the time of his visa application and his subsequent statement supported the assertion that there was a separate claim as to a fear of spying. I do not read the material advanced as supporting such a finding. Whilst it is correct there is a reference to the Taliban accusing people of being spies, the applicant’s claims in respect of his fear in respect of being accused of spying was clearly linked and subsumed by his original statement to his having lived in a western country. No jurisdictional error, as alleged in Ground 1, is made out.

Ground 2

  1. In relation to Ground 2, Mr Tully argued that the Authority had failed to consider the applicant’s personal circumstances. It is apparent, on a fair reading of the Authority’s reasons, that the Authority considered the conditions to which the applicant would be exposed and meaningfully engaged with the submissions advanced on behalf of the applicant. The Authority, on a fair reading, engaged in determining whether it was reasonable for the applicant to relocate considering the practical aspects of relocation. Mr Tully argued that there had been an error made in the present case because of a failure to consider targeting at Kabul airport. There was no error by the Authority.

  2. In the present case, the Authority referred to the availability of flights direct to Mazar-e-Sharif. No jurisdictional error of the kind identified in AHI16 v Minister for Immigration [2016] FCCA 3140 arises in the circumstances of the present case, given the Authority’s reference to the ability of the applicant to obtain international flights direct to Mazar-e-Sharif. It is not necessary for this Court to determine whether or not the decision in AHI16 should otherwise be followed or is clearly distinguishable. No jurisdictional error, as alleged in Ground 2, is made out.

Ground 3

  1. In relation to Ground 3, Mr Tully argued that the Authority’s reasons in paragraph 14 considering the submissions dated 10 January 2017 and 30 January 2017 was erroneous, given the reference to the articles that were included in a consideration of the response provided on 24 October 2016 and 2 December 2016. On a fair reading, it is apparent that the Authority recognised that the information was purportedly provided in response to the invitation previously made to the applicant as the Authority expressly says so.

  2. It was correct for the Authority to identify that it was new information and it was correct for the Authority to apply s 473DD in considering whether to receive that new information. The reference made by the Authority to the nature of the information clearly identifies the Authority properly considered both limbs in s 473DD, taking into account also, the reference to whether it was relevant to the consideration of the applicant’s claims. For reasons already given, it was open to the Authority in these circumstances to find that the articles were not relevant to the consideration of the applicant’s claims.

  3. Even if that was an error by the Authority in determining whether it was relevant to the applicant’s claims, that is an error within jurisdiction that does not give rise to any jurisdictional error. There was no misconstruction on this application of s 473DD. No jurisdictional error, as alleged in Ground 3, is made out.

Conclusion

  1. Accordingly, the application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 January 2018

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AHI16 v Minister for Immigration [2016] FCCA 3140