BKL15 v Minister for Immigration - [2015] FCCA 3455

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKL15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3455

Catchwords:
MIGRATION – Independent Protection Assessment – Protection (Class XA) visa – whether the independent assessor failed to take into account a relevant consideration – whether the independent assessor failed to consider the relevant sub-group of the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 474(3)(h), 476

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No. 2) (2004) 144 FCR 1

Applicant:

BKL15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

RUTH LAYTON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 1978 of 2015

Judgment of:

Judge Street

Hearing date:

22 December 2015

Date of Last Submission:

22 December 2015

Delivered at:

Sydney

Delivered on:

22 December 2015

REPRESENTATION

Solicitors for the Applicant:

Mr S Hodges
Stephen Hodges Solicitor

Counsel for the Respondent:

Mr M Smith

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

Leave is granted to the Applicant to amend the amended application in ground 2 (ii) by deleting the words “with little or no family support available to him in Afghanistan” and adding the words “departure from Afghanistan on a fraudulent passport”
Leave is granted to join Ruth Layton in her capacity as an independent protection assessor as a Second Respondent to the proceedings in substitution for the Administrative Appeals Tribunal.
The further amended application be filed and served on the first respondent by the applicant on or before 14 January 2016 which will be taken to be effective service on the Second Respondent.
The further amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1978 of 2015

BKL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

RUTH LAYTON IN HER CAPACITY AS AN INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under ss.474(3)(h) and 476 of the Migration Act 1958 (Cth) for declaratory relief in respect of an independent protection assessment made by the second respondent on 30 November 2012.
That assessment was made in relation to the applicant who was found to be a national of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia on 25 March 2011 and applied for protection on 3 May 2011. The application for protection was rejected by a delegate on 28 July 2011 following which there was an automatic referral for an independent protection assessment that was carried out by the second respondent.
The applicant was found to be of Hazara ethnicity and a Shia Muslim. The applicant claims fear of persecution arising from the distribution of bibles and he feared he would suffer serious harm from the government if this was discovered. The applicant also claimed fear of harm by reason of his ethnicity and religion.
The proceedings are seeking declaratory relief and were commenced on 17 July 2015. The nature of the declaratory relief in the present case is akin to proceeding for prerogative relief. Whilst the granting of declaratory relief involves an exercise in judicial discretion, the delay in taking steps to commence proceedings in the present case in respect of the independent protection assessment that occurred in 2012 ordinarily would require a satisfactory explanation to justify a grant of relief, albeit that the overriding consideration in relation to the grant of relief is the interests of the administration of justice.
That overriding consideration is one in respect of which relief may be granted where the Court is satisfied that there has been a material error of law in the independent protection assessment. In the present case the grounds upon which it is alleged that the independent assessor erred in law are as follows:
Ground 1
The assessor committed jurisdictional error by failing to identify, or sufficiently identify relevant information.
i. The assessor did not inquire as to the reasons why the claimant was deported twice from the UK [30];
ii. The assessor did not inquire as to the reasons why the claimant was deported twice from France [33];
Ground 2
The assessor failed to properly identify the community sub-group into which the claimant would fit upon his force return to Afghanistan:
i. The assessor accepted that the claimant is an Afghani Hazara ethnic of the Shia Muslim religion.
ii. The assessor did not consider that the claimant, on returning the Afghanistan, would be an Afghani ethnic of the Shia Muslim religion, who was a failed asylum seeker, married but living separately from his wife, had spent many years living out of Afghanistan, about 29 years old and departure from Afghanistan on a fraudulent passport.
I note that in the course of argument Mr Hodges, solicitor for the applicant abandoned ground 1 (iii) and (iv). The substance of the argument for the applicant in relation to ground 1 was that the reasons for departure twice from the UK and for being deported twice from France were a claimed fear that required findings by the independent assessor in applying the criteria under ss.36(2)(a) and/or 36(2)(aa).
Mr Hodges relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No. 2) (2004) 144 FCR 1 as supporting the proposition that the deportation from the UK and from France were obvious claims to fear persecution or significant harm that should have been assessed by the independent assessor.
The independent assessor identified in relation to the applicant’s background the allegations by the applicant of having being deported twice from the UK and twice from France. I do not accept that that background gave rise to any obvious claim of fear of persecution or significant harm in respect of the reasons for deportation. I reject the proposition that the independent assessor made any error of law by failing to identify, or sufficiently identify, relevant information. Ground 1 fails to make out any error of law in the independent assessment by the second respondent.
In relation to ground 2, the solicitor for the applicant contended that the cumulative matters identified in ground 2(ii), including departure from Afghanistan on a fraudulent passport, were matters that should have been the subject of a clear finding by the independent assessor, or, alternatively, constituted a separate subgroup in respect of which the independent assessor should have made findings.
The independent assessor had concerns in relation to the applicant’s credibility, and found that the applicant’s evidence at times indicated a lack of honesty.
The Protection Obligation Evaluation officer’s decision, made on 27 July 2011 referred to by the independent assessor at para.26, including the following (CB133):
The claimant stated he departed Afghanistan in about November 2010 and travelled on a fraudulent Pakistani passport.
The substance of the applicant’s submission, in relation to the use of the fraudulent passport by the applicant, is that the applicant was an illegal departee from Afghanistan, and accordingly fell into a subgroup of Afghani Hazara Ethnic Shia Muslims who had illegally departed Afghanistan. No such claim was identified as the subject of any fear by the applicant in his statement as to the reasons why he left Afghanistan and no such fear of persecution or significant harm, in my opinion, was apparent or sufficiently raised in the evidence before the independent assessor so as to require separate findings by the independent assessor.
Further, in my opinion, the independent assessor’s finding that referred to having considered the applicant’s claims cumulatively, followed by the word “including”, properly addressed the subgroup that had been articulated by the applicant, being a failed asylum seeker, which had been also the subject of separate findings by the independent assessor.
I do not accept that there was a separate subgroup that the applicant advanced that the independent assessor should have addressed in relation to being an illegal departee from Afghanistan, or an illegal departee who was a Hazara Ethnic of the Shia Muslim religion and a failed asylum seeker. It is clear that the independent assessor made adverse findings in relation to the applicant’s claims in respect of being a failed asylum seeker. No legal error is made out by ground 2 of the amended application.
I note the Court granted leave to the applicant to file a further amended application, joining the independent assessor as a party, relevantly, to amend the application and to substitute the independent assessor as the second respondent in place of the Administrative Appeals Tribunal. There is no error of law identified in the independent assessor’s assessment, and, accordingly, the Court does not need to determine whether the judicial discretion should be exercised in the present case, notwithstanding the delay that has occurred.
I should note in that regard that the solicitor for the applicant frankly acknowledged that there was no explanation for the delay. The solicitor for the applicant did refer to a level of mental impairment that was considered by the independent assessor in relation to the adverse findings, but it was not suggested that this was a ground upon which the delay could be explained.
Given the above findings of no error of law, it is unnecessary for the court to deliberate further upon the discretionary considerations that might otherwise have arisen. For these reasons the further amended application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 14 January 2016