BLD18 v Minister for Home Affairs

[2019] FCCA 1457

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1457

Catchwords:
MIGRATION –Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s decision was affected by jurisdictional error – whether the Authority failed to have proper regard to relocation – whether affected by unreasonableness – writs issued.

Legislation:

Migration Act 1958 (Cth), s5H, 36.

Cases cited:

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

Applicant: BLD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 783 of 2018

Judgment of: Judge Humphreys

Hearing date: 29 May 2019

Date of Last Submission: 29 May 2019

Delivered at: Parramatta

Delivered on: 29 May 2019

REPRESENTATION

Counsel for the Applicant: Mr King

Solicitors for the Applicant: Varess

Counsel for the Respondents: Mr Kay Hoyle

Solicitors for the Respondents: DLA Piper

ORDERS

1. A WRIT OF CERTIORARI issue, quashing the 21 February 2018 decision of the second respondent (Authority) affirming the decision of a delegate (Delegate’s Decision) of the first respondent (Minister) to refuse to grant the applicant a protection visa (Authority’s Decision).

2. A WRIT OF MANDAMUS issue, remitting the matter to the Authority and requiring it to review the Delegate’s Decision according to law.

3. A WRIT OF PROHIBITION issue, prohibiting the Minster and his delegates, servants and agents from acting upon or giving effect to the Authority’s Decision.

4. The first respondent pay the applicant’s costs fixed in the amount of $8738.00.

DATE OF ORDERS: 29 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 783 of 2018

BLD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT
(Revised from Transcript)
(As Corrected)

Introduction

1. The applicant arrived in Australia by boat as an unauthorised maritime arrival on 4 December 2012, and applied for a Safe Haven Enterprise Visa on 13 May 2016. A delegate of the Minister for Home Affairs refused that application on 4 May 2017. The applicant then sought review by the Immigration Assessment Authority (“the Authority”). On 21 February 2018, the Authority affirmed the decision of the delegate. The applicant now seeks judicial review of the Authority’s decision.

Background

1. The applicant is an Afghan national of Hazara ethnicity and Shia Muslim religion. The applicant was born in Jaghori in Ghazni Province in Afghanistan. When the applicant was one year of age, his father was threatened, being accused of causing the death of a young man in a nearby Pashtun village. The applicant’s family fled to Iran. It is common ground that the applicant’s father was killed. The applicant stayed in Iran for many years and then was deported from Iran after he was found to be working illegally.

2. The applicant spent a short time in Afghanistan over a period of a couple of months. During that time, the applicant states he worked escorting fuel convoys. The applicant then left for Australia. The applicant’s claims for protection are set out at paragraph 11 of the Authority’s decision. They are:

   a)If returned, he would be seriously harmed because of his religious and ethnic profile as a Shia Hazara.

   b)He fears being harmed by armed insurgent groups such as the Taliban and Islamic State. These groups target Hazaras and Shia Muslims throughout Afghanistan.

   c)He fears harm in his home area of Jaghori because of his father’s past conflict with a Pashtun village and a dispute over his family’s former land.

   d)He fears harm from armed groups on the basis he spent time in the West, specifically Australia, sought asylum in Australian and has Western connections. He also fears harm on the basis of an imputed politic opinion or profile arising from these factors.

   e)He fears harm from the Taliban or other armed groups because of his involvement in escorting a convoy from Kabul to Kandahar in January 2012.

The Authority Decision

1. The Authority accepted the applicant is a Shia Hazara from Afghanistan and his identity is as stated. However, the Authority had a number of concerns as to the applicant’s credibility on other issues. These concerns and the basis for them are set out in paragraphs 15 to 32 of the Authority’s decision. They focus on concerns about his family, their identity and location. They focus on the inconsistencies and his denials of sending significant amounts of money to various people from April 2014 to December 2016. At paragraph 32, the Authority did not accept the applicant’s claim that he no longer has friends or family in Jaghori or Kabul.

2. At paragraph 35, the Authority noted that when asked whether there are other factors why he could not relocate to Kabul, the applicant again said his mother had told him not to go to Jaghori. The applicant does not know why but she insisted he not do so. At paragraph 37, the Authority dismisses his claims that his family’s land was taken or that he would seek to reclaim that land as not credible. At paragraph 38, the Authority finds that the family dispute that arose was in relation to a Pashtun family came to an end when the applicant’s father was murdered in 1994 and the applicant is not at risk as a result of that land dispute.

3. Given that Jaghori is a Hazara-dominated area, at paragraphs 39 to 41, the Authority did not find a risk of serious harm if he returned to that area. At paragraphs 42 to 48, the Authority deals with claims of fears due to having worked for a month in 2012 escorting fuel convoys. In paragraph 48, the Authority finds that given the vagueness of the applicant’s claim, it did not accept he was involved with convoys or was ever at risk from the Taliban or other armed groups. Paragraph 49 onwards deals with fears based on religious, ethnic and related profile.

4. Paragraph 50 of the Authority’s decision, acknowledges issues with Islamic State and that there was an elevated risk for Shias living in Kabul. However, at paragraph 51, the Authority does not accept a significant risk of harm to the applicant in Jaghori or Ghazni Province. Paragraph 54 deals with the issues of security on roads, abductions and ransoms of those travelling. At paragraph 55, the Authority accepted the applicant would be returned to Kabul initially and that he would be safe during a short journey of single nature prior to returning to Jaghori. Paragraph 56 accepts that there may be a risk of harm in travelling on a single journey, but that the chance of the applicant being seriously harmed is remote.

5. At paragraph 59, the Authority concluded he did not face a serious risk of harm in Jaghori or Hazarajat. Paragraph 64 deals with the risk associated with western associations, connections or mannerisms. The Authority concludes that the applicant would take reasonable steps to modify his conduct to avoid the risk of harm which would not require him to modify a characteristic fundamental to his identity or conceal an innate or immutable characteristic. At paragraph 66, the Authority concluded he did not meet the requirements of being a refugee under s 5H(1) or s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

6. Paragraph 68 to 72 deal with the complementary protection considerations. For similar reasons, as outlined above, the Authority concluded the applicant did not meet the requirements of section 36(2)(aa) of the Act.

Consideration of the Grounds

1. The applicant was granted leave to rely on amended grounds of appeal that were filed with the Court. The grounds were as follows:

   1. The Authority erred in law in applying s 473DD of the Act, and its decision was irrational, illogical, or unreasonable, insofar as the Authority found there were exceptional circumstances to justify consideration of “updated country reports [obtained by the Authority] which account for the current security situation in Afghanistan”, but found there were not exceptional circumstances to justify consideration of “new reports and country information” on the same topic cited by the applicant (at [5]).

   2.   The Authority erred in law, and its decision was irrational, illogical, or unreasonable, insofar as the Authority concluded that “the chance of the applicant being abducted, killed or seriously harmed on the roads during his journey from Kabul to Jaghori is present, but I am satisfied the chance of him being seriously harmed is remote” (at [56]), and in failing to consider whether there is a real chance that the applicant’s vehicle would be stopped.

   3.   The Authority erred in law and acted unreasonably in finding that it would be reasonable for the applicant to remain in his home area because he “continues to have family and tribal networks in Jaghori District, and these people could assist him with accommodation and finding work on return to the district” (at [58]).

   Particulars

   a.There was no evidence that the applicant had or continues to have family and tribal networks in Jaghori District who could assist him with accommodation and finding work on return to the district.

   b.The issue of whether it was reasonable for the applicant to remain in his home area and never travel outside his home area was not raised with the applicant, in circumstances where the Authority knew that it did not have but the applicant was likely to have information on his particular circumstances and the impact upon him of remaining in his home area, with the result that the Authority acted unreasonably in failing to consider the exercise of power under s 473DC(3): Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [79]-[81], [86]-[94] (Robertson, Murphy and Kerr JJ).

   4. The Authority erred in law and acted unreasonably in failing to consider whether to exercise power under s 473GB(3)(b) of the Act to disclose to the applicant the material the subject of the certificate issued under s 473GB(1).

   Particulars

   a.   On or about 18 October 2017, the applicant requested the Authority to consider whether it was appropriate to exercise power under s 473GB(3)(b) to disclose to the applicant the material the subject of the certificate issued under s 473GB(1) (CB192-193).

2. The Court first will deal with Ground 3, because it is the matter that has the most substance. The Court notes that Ground 2 was not pressed.

3. The essence of Ground 3, as put to the Court by the applicant’s counsel, Mr King, is this: where the original delegate did not consider relocation to Jaghori and really only considered relocation to Kabul or Mazar-e-Sharif, further information came to light which indicated that those places or certainly Kabul was not safe. The Authority then made a positive determination that the applicant could return and live safely in Jaghori. At paragraph 57 of the Authority decision, the decision maker stated:

   Other than his return trip from Kabul to his home area of Jaghori, I’m satisfied the applicant does not have reasons to travel outside of his home area.

4. The evidentiary basis for the conclusion that the applicant did not have reasons to travel outside that area is simply not apparent from the face of the material. Further, the Authority did not seek to have the fact that the applicant could relocate to Jaghori put to the applicant for comment prior to making the findings that he could live there and that he had family and tribal associations that would enable him to live safely in that area. It is submitted by the applicant that for the Authority to make these findings without seeking comment from the applicant, amounts to legal unreasonableness. The Court refers, in particular, to a decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 and, in particular, paragraph 94:

   Further, the exercise of the power to decide lacked an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

5. The applicant was aware that relocation to either Kabul or Mazar-e-Sharif was under consideration by the delegate, however, the applicant certainly was not aware that relocation back to Jaghori was under active consideration. There is information contained within the original delegate’s decision and the applicant told the delegate that his mother had told him not to go back to Jaghori. The reasons for that were not known to the Applicant. However, it is possible that the applicant could have found out those reasons through correspondence with his mother, had he been asked to do so.

6. The Court is satisfied that the circumstances that apply here are exactly the same as those set out above by the Full Federal Court in Minister for Immigration and Border Protection v DZU16. The applicant had raised the issue that he was not safe. The delegate proceeded to make an assumption that the applicant were safe solely based on negative credit findings. I am not satisfied that it was legally reasonable that the Authority should make those findings without inviting the applicant to comment on that matter. It amounts to legal unreasonableness. The Court is not satisfied that the applicant was on notice that he had to show it was unsafe for him to go to Jaghori. That ground of appeal is sustained.

7. For those reasons, it is not necessary for the Court to deal with the other remaining grounds, although the Court does have some cause for concern in relation to the invalid certificate and the procedure that was followed there.

Conclusion

1. The application is granted and the relief sought in the application will be granted.

2. I am minded to award costs in the amount of $8738.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 26 June 2019

Correction (28 June 2019)

1. Representation: Page 2, changed the name of the solicitors for the applicant from Varess: Immigration Lawyers.