BIG17 v Minister for Immigration

[2020] FCCA 802

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIG17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 802

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account and/or properly consider the applicant’s submission – whether the Authority failed to take into account a mandatory relevant consideration – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: BIG17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 176 of 2017

Judgment of: Judge Street

Hearing date: 7 April 2020

Date of Last Submission: 7 April 2020

Delivered at: Sydney

Delivered on: 7 April 2020

REPRESENTATION

Counsel for the Applicant: Mr F Robertson

Solicitors for the Applicant: AUM Legal

Solicitors for the Respondents: Mr P Macliver Australian Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

3. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.

4. Leave is granted to the applicant to rely on the amended application filed on 4 March 2020.

5. The amended application is dismissed.

6. The applicant pay the first respondent’s costs fixed in the amount of $7,347.00.

DATE OF ORDER: 7 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 176 of 2017

BIG17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt 7AA of the Act, made on 23 February 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country.

3. The applicant arrived in Australia as an unauthorised maritime arrival on 13 March 2013. 

4. The applicant was born in a village in a particular district in the Ghazni Province in Afghanistan, and he is married and has three children, and his family in that regard reside in Pakistan. 

5. The applicant claimed that the Taliban wanted him to stop working as a taxi driver, and that there was an incident in which he found his taxi to be on fire.

6. The applicant claimed to fear harm from the Taliban, and by reason of being a Shia Muslim, and by reason of his Hazari ethnicity. 

7. The applicant claimed that his father had worked in a particular area where the Taliban was active, that he worked there with a particular government official, and that the Taliban had attacked this area and abducted many people, including his father, who had been missing ever since.

8. On 12 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. 

9. The Authority wrote the applicant on 14 September 2016, giving the applicant an opportunity to put on new information and submissions.  The applicant did put on new information and submissions, and these are referred to in the Authority’s reasons.

10. The Authority identified the background to the Protection visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

11. The Authority, in identifying the submissions that were provided, had regard to the same insofar as they engaged with the Delegate’s decision and considered the new information against the criteria under s 473DD of the Act. 

12. The Authority summarised the applicant’s claims. 

13. The Authority was satisfied that there is no chance or risk of the applicant being harmed in connection with his father’s disappearance or his father’s work for a particular government official.

14. The Authority was satisfied that there is more than a remote chance of the applicant being seriously harmed by the Taliban if he travels to, and returns to live and work in his home area.

15. It was in that context that the Authority turned to consider whether or not the applicant faced a real risk or real chance of harm in areas like Kabul or Mazar-e Sharif. The Authority was satisfied the applicant had had only incidental and localised association with government or international community through his taxi service, and that the applicant had no such association or connection, nor would he be likely to have such a connection if he returned to the country. The Authority found that there was no real chance of the applicant being harmed by reason of his having been a taxi driver. 

16. The Authority considered the applicant’s claims that the risk of harm to him extends beyond his home area due to his profile and the Taliban’s network. The Authority did not accept that the applicant would be identified, followed or targeted outside his home area, whether by the Taliban or its informants. The Authority was satisfied that the applicant would only face risks arising if he were to return to his home area.

17. The Authority referred to the applicant’s evidence that a number of his family members have returned to his home region and Kabul without incident. The Authority was satisfied that no risk would come to the applicant’s family if he returned to the country and live in Kabul, or another major city outside his home area. 

18. The Authority was not satisfied that there is a real chance of the applicant or his family being targeted for serious harm by the Taliban or anyone else outside his home area.

19. The Authority also found that the applicant does not face a real chance of being seriously harmed for reasons of his ethnicity, and/or religion in all areas of the country. 

20. The Authority found that there is no real chance of the applicant being seriously harmed in Kabul or Mazar-e Sharif for reason of his ethnicity or religion by the Islamic State or any other Anti-Government Elements (“AGE”) active. 

21. The Authority found there is not a real chance of the applicant being seriously harmed for reasons relating to his religion or ethnic group, as a returnee from the west (including as an English speaker) or asylum seeker, or any other profile he might hold, or due to his past issues with the Taliban. The Authority was satisfied that the applicant does not face a real chance of persecution in respect of all areas of the receiving country and that s 5J(1)(c) of the Act is not met. 

22. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

23. The Authority turned to the issue of complementary protection and made express reference to the requirements of s 36(2B) of the Act.

24. The Authority referred to the findings that the Authority had made in relation to considering whether it would be reasonable for the applicant to relocate to an area in the country such as Kabul, where there would not be a real risk that he will suffer significant harm. The Authority referred to the applicant’s submissions and the factors that he had raised as to why he cannot relocate. The Authority expressly referred to the applicant claiming that he has a health condition and cannot adequately be treated for that if he returns to his country.

25. The Authority also referred to other country information the subject of that submission in relation to repatriations and continued it would not be reasonable for the applicant to be relocated to Kabul or Mazar-e Sharif, where he would be unable to accommodate for his basic needs, including food, safe water, and shelter, and be forced into circumstance of poverty. The Authority addressed the applicant’s medical condition and his submissions in relation to whether he would be denied access for medical treatment.

26. The Authority referred to a second submission in relation to the health and prognosis of the applicant. The Authority was satisfied that the applicant’s medical treatment would shortly be completed, and given that imminent completion, was satisfied that the applicant’s health is no longer an impediment to his return to Afghanistan, or that it would make it unreasonable for him to relocate within the country.

27. The Authority referred to the extensive submissions in relation to issues facing returnees and about the humanitarian crisis. The Authority accepted that there are considerable pressures from returnees from Pakistan and this includes persons returning to Kabul and Jalalabad. The Authority accepted that this impacts on the costs of living and access to accommodation and employment.

28. The Authority took into account country information in terms of employment, housing and access to essential services. The Authority referred to the Afghan government addressing those pressures and the international community continuing to provide financial and other assistance. 

29. The Authority found that the country information does not indicate that relocations are impossible or undesirable. The Authority gave considerable weight to the information put forward by the applicant, taking into account the applicant’s individual circumstances in the assessment of whether it would be reasonable, and took into account the assessment of whether it would be reasonable for the applicant to relocate within the country to avoid significant harm.

30. The Authority referred to country information as to men of working age being more likely to be able to return and reintegrate successfully.  The Authority took into account that the applicant was benefited in that regard by the fact that he would be returning to Afghanistan without his family, and the Authority expressly referred to the applicant having a brother and sister living in Kabul. The Authority identified that this was a significant factor in favour of him being able to successfully and reasonably relocate to that city. The Authority took into account that they were university students, but was satisfied that they would be able to assist the applicant with finding accommodation, work and access to the necessary services to relocate successfully in the short term. The Authority found that the presence of the applicant’s family overcame some of the significant barriers faced by others who were returnees without such connections and support.

31. The Authority referred to the applicant’s personal ability to relocate, and his demonstrated ability with English, and referred to his education and his work as a labourer, being a stone cutter in house construction and taxi driving. The Authority found that the applicant not only has work experience in a range of fields, he has shown ability to acquire work in other countries, including Iran and Pakistan. The Authority also referred to the applicant’s desire to start training as a tiler. The Authority found that this suggests that not only does the applicant have skills, but he also possesses the resourcefulness and resilience to find work in Kabul or another city.

32. The Authority was satisfied that the applicant would be well-placed to overcome the challenges and that he would be able to find stable work and accommodation in Kabul. 

33. The Authority also took into account the applicant’s medical condition and was satisfied that he has since received the necessary treatment for that condition, as indicated, and that this is no longer a barrier to him being able to return to Kabul. 

34. The Authority was satisfied that the applicant could establish himself in Kabul and would be able to bring his family there in due course.

35. The Authority was satisfied that, even if the applicant did return to driving a taxi, he would do so without travelling to or returning to his home area, and that it would be reasonable for him to stay in Kabul, rather than return to his home region. 

36. The Authority considered that the applicant’s advantages would enable him to earn a livelihood and establish himself within Kabul, which will provide him with access to necessary infrastructure and essential services to sustain himself and his family, and to meet the basic necessities of life.

37. The Authority was satisfied that it was reasonable for the applicant to relocate to Kabul, where there would not be a real risk that the applicant would suffer significant harm. The Authority was satisfied that the applicant could reasonably relocate to Kabul and that there is not a real risk that the applicant would suffer significant harm in Afghanistan. 

38. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk that 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 and affirmed the decision under review. 

The grounds

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

   Ground 1

   The Independent Assessment Authority (‘IAA’) fell into jurisdictional error by failing to take into account and/or properly consider the submission made at CB158 that it would be unreasonable for the applicant to relocate given poor sanitation and water when conducting its assessment pursuant to s.36(2B) of the Migration Act 1958 (Cth) and in doing so erred in the same manner as the IAA did in DIJ17 v Minister for Immigration [2018] FCCA 2407.

   Ground 2

   When concluding at paragraph [63] of its reasons, the IAA, failed to take into account a mandatory relevant consideration namely whether it would be reasonable for the applicant’s wife and children to relocate to Kabul and in so failing fell into jurisdictional error: see MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [62].

Ground 1

1. Mr Robertson, counsel on behalf of the applicant, submitted that there had not been a real and genuine consideration of the applicant’s submissions in relation to the poor sanitation and water limitations in relation to the reasonableness of the relocation in respect of complementary protection. Mr Robertson submitted that the Authority had been cognisant of the claim, but did not actively engage with it. That submission is without substance.

2. The Authority’s reasons reflect a real and meaningful engagement with the applicant’s submissions, and in particular, his concern relating to the issue of the health conditions and whether he would be able to accommodate his basic needs, including food, safe water and shelter, and be forced into circumstances of poverty. The Authority’s reasons as summarised above do not reflect a mere cognisance of the applicant’s claims, but reflect a real and meaningful engagement with the same.

3. There is no basis to find that the Authority did not take into account the applicant’s submissions in relation to the poor sanitation and water. The Authority made adverse findings in relation to the complementary protection open to it for the reasons it gave. 

4. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Robertson submitted that the Authority had failed to take into account a mandatory relevant consideration, being whether it would be reasonable for the applicant’s wife and children to relocate to Kabul. 

2. The applicant’s wife and children were identified by the Authority as being in Pakistan. In those circumstances, there was no need for the Authority to make findings about the reasonableness of their relocation back to Kabul. 

3. Mr Robertson contended that, because the Authority made reference to the fact that his family may join him in the future, the Authority was required to consider the reasonableness of whether in those circumstances the applicant as a single man, would then be in a position where he might face the risk of significant harm. No such issue was advanced before the Authority and no such issue fairly arose on the material before the Authority.

4. No jurisdictional error as alleged in ground 2 is made out. 

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

I certify that the preceding forty-eight (48) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 7 April 2020.

Date: 19 May 2020