BMR17 v Minister for Immigration

[2017] FCCA 2834

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMR17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2834

Catchwords:
MIGRATION – Immigration Assessment Authority – Subclass XE-790 Safe Haven Enterprise Visa – whether the Authority erred in its assessment of relocation – whether the Authority did not complete its task of assessing relocation – no jurisdictional error identified – further amended application dismissed.

Legislation:

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

Applicant: BMR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1061 of 2017

Judgment of: Judge Street

Hearing date: 20 November 2017

Date of Last Submission: 20 November 2017

Delivered at: Sydney

Delivered on: 20 November 2017

REPRESENTATION

Counsel for the Applicant: Mr M Guo of counsel

Solicitors for the Applicant: Beena Rezaee Legal & Migration

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed on 6 November 2017.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1061 of 2017

BMR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application 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 of the Act made on 13 March 2017 affirming a decision of the delegate not to grant the applicant a protection Subclass XE-790 Safe Haven Enterprise Visa. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant arrived in Australia on 16 August 2012 as an unauthorised maritime arrival.

2. The delegate found the applicant had failed to meet the criteria for the grant of a visa under the Act. The delegate found that the applicant does not face a real chance of being persecuted should he return to Kabul, Afghanistan, and was not satisfied that the real change of persecution relates to all areas of the receiving country. The delegate found it was reasonable and practical for the applicant to relocate to Kabul.

The Authority’s decision

Information before the Authority

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

2. The applicant put on submissions on 2 November 2016 which are referred to in the Authority’s reasons. The Authority wrote to the applicant on 18 November 2016 inviting the applicant to comment on information. The information was one which the Authority identified as being relevant in relation to whether it should find that future attacks upon the Shia Hazara population are likely to be infrequent and not such as to pose a real chance or real risk of harm to the applicant.

3. The Authority also invited the applicant to comment on country information that Hazaras form one of the majority ethnic groups in Mazar-e-Sharif, which is known as a melting pot of diverse cultures and religious influences where liberal attitudes co-exist with conservative traditions. The information referred to Mazar-e-Sharif in the last decade being relatively isolated from conflict and that while armed attacks have occurred in the Balkh province, militant attacks are rare in the city and that it is reported to be one of the safest cities in Afghanistan, much more so than Kabul. Reference was also made to the Mazar-e-Sharif economy reportedly growing stronger. Reference was also made to country information indicating there is an international airport at Mazar-e-Sharif as well as accepting flights from Kabul and international locations.

4. The letter identified that the information was relevant to the applicant’s case because it may lead the IAA to conclude that Mazar-e-Sharif and Herat are safe alternatives for Hazari Shias to relocate to and although there are occasional attacks, these are likely to be infrequent and do not pose a real chance or real risk of harm to the applicant. The invitation to comment also referred to a DFAT report and that Mazar-e-Sharif is one of the biggest commercial and financial centres in Afghanistan and is regarded as one of the safest cities, with relative security of the province being attributed to a monopoly on power.

5. A reference was made to the reported increase in insurgent attacks but these attacks remain almost exclusively directed against national security forces. The letter made reference to the country information being relevant because it may lead the Authority to conclude that Mazar-e-Sharif is a safe alternative for Hazari Shias to relocate to and although there has been an increase in attacks, there is no evidence to indicate that Hazari Shias have been targeted in the past or that future attacks are likely to pose a real chance or real risk of harm to the applicant.

6. Further submissions were put on by the applicant on 16 December 2016. Those submissions are also expressly referred to in the Authority’s reasons. The applicant’s submissions engage with the country information and also address specifically Mazar-e-Sharif is a place to which the applicant could relocate. Reference was made to recent country information. The applicant’s earlier submissions dated 2 November 2016 had also addressed the reasonableness of relocation albeit to Kabul.

7. The Authority’s reasons referred to the applicant’s submissions dated 16 December 2016 providing a response to the new information identified by the Authority in its letters, being the country information falling within s 473DD. The Authority identified that there were exceptional circumstances to justify considering that new information.

8. The Authority in its reasons identified the background to the visa application. The Authority acknowledged having regard to the information referred under s 473CB of the Act. The Authority made reference to the submissions of 2 November 2016 and in particular that the delegate’s finding in relation to Kabul as to the risk of harm was outdated.

9. The Authority made reference to the submission claiming the delegate relied on old country information in determining whether it was reasonably practical to relocate to Kabul and also in relation to the economic situation. The Authority referred to the submission seeking to refute the delegate’s finding relying on country information that was before the delegate including an expert opinion dated 24 July 2016 from Professor William Maley, a September 2016 DFAT report and the UNHCR eligibility guidelines dated April 2016. The Authority did not consider these aspects of the submissions amount to new information and had regard to the same.

10. The Authority made reference to other articles and found there were exceptional circumstances to receive the same. The Authority also identified taking into account reports of attacks on Shias in Kabul and Mazar-e-Sharif, which the Authority had obtained consistent with the then country information in s 473DE(3). The Authority then referred to the submissions in response to the invitation by the Authority inviting the applicant to comment on various aspects of country information relating to the reasonableness to relocate to other cities including Mazar-e-Sharif.

Refugee assessment

1. The Authority summarised the applicant’s claims. The Authority set out the relevant law and included a summary of the applicable law incorporated in the Authority’s reasons. The Authority identified the requirement of s 5J(1)(c) that the real chance of persecution must relate to all areas of the receiving country. The Authority was not satisfied the applicant faces a well-founded fear of persecution in Mazar-e-Sharif.

2. The Authority made reference to the applicant having lived most of his life outside Afghanistan and having no family remaining in Afghanistan, and no networks there, as his extended family are in Qatar. The Authority made reference to societal discrimination in Afghanistan generally on the basis of ethnicity and religion, which DFAT described as nepotism with particular ethnic and religious groups where ethnic, tribal, or family connections will often be more important than merit in employment decisions for both government and private sector positions. The Authority accepted 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.

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

4. The Authority was not satisfied the applicant would be imputed with an adverse political opinion in Mazar-e-Sharif as a Hazara Shia who resided in Pakistan and in a western country. The Authority was not satisfied there was a real chance of harm upon the applicant’s return to Mazar-e-Sharif and that he can safely access the same by air. The Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1) and does not meet the criteria under s 36(2)(a).

Complementary protection assessment

1. The Authority then turned to the criteria in respect of complementary protection and noted that the Authority had found the applicant may be killed or physically harmed by local Taliban on the roads if he returns to Jaghori.

2. The Authority was not satisfied the applicant faces a real risk of significant harm in Mazar-e-Sharif and found the applicant could safely access the same by air. The Authority made reference to the applicant having lived outside Afghanistan for most of his life and having no family ties there and will be identified as someone who has lived in Pakistan. The Authority made reference to Mazar-e-Sharif being a melting pot of diverse cultures and religious influences where liberal attitudes co-exist with conservative traditions. The Authority made reference to DFAT indicating that there is societal discrimination at a community level usually in the form of nepotism, which is primarily as a result of the important role played by ethnic, tribal, and familial networks in Afghan society.

3. The Authority made reference to DFAT indicating that ethnic, tribal, and family connections will often be more important than merit in employment decisions for both government and private sector positions. The Authority accepted that the applicant does not have family links to support him and accepted that he may be subject to nepotism on return to Mazar-e-Sharif.

4. The Authority, though, was not satisfied that there is a real risk that such nepotism or discrimination would result in the applicant being denied the capacity to subsist or that it would result in him being arbitrarily deprived of his life or would constitute the death penalty or torture. The Authority was not satisfied there is a real risk such nepotism or discrimination would inflict pain or suffering or severe pain or cause extreme humiliation which is unreasonable such that it amounts to degrading treatment or punishment. The Authority did not accept that such treatment constitutes significant harm as defined in s 36(2A) of the Act.

5. The Authority found there is not a real chance that the applicant would face other forms of harm in Mazar-e-Sharif as a Shia Hazari and, as the real risk test imposes the same standards as the real chance test, the Authority was not satisfied there is a real risk of the applicant suffering such harm on return to Mazar-e-Sharif as a Shia Hazara.

6. The Authority made reference to otherwise having found that there is not a real chance the applicant will face serious harm in Mazar-e-Sharif due to his imputed political opinion or as a returnee from the west. It was in those circumstances, the Authority was not satisfied there is a real risk of the applicant suffering significant harm on the return to Mazar-e-Sharif for those reasons.

7. The Authority then turned to the current security situation in Afghanistan to consider whether there is a real risk of significant harm due to generalised violence in Mazar-e-Sharif. The Authority was not satisfied there is a real risk of the applicant suffering harm on return to Mazar-e-Sharif on the basis of the general security situation in Mazar-e-Sharif for any reason. The Authority was satisfied that it was reasonable for the applicant to relocate to Mazar-e-Sharif.

Relocation

1. The Authority made reference to the applicant’s submissions that it would not be reasonable for the applicant to relocate because he has no family and has not lived there since 1992 and his immediate families are living in Pakistan illegally, and he would not be returning to Afghanistan as a single, able-bodied man but would be accompanied by his family who need his support. The Authority made reference to the applicant being an illiterate shoemaker and not a businessman who, given his limited education skills and lack of family networks, it was submitted would be unable to find employment, accommodation to enable him to live at a subsistence level. The Authority made reference 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. The Authority made reference to the submission that it is unreasonable to expect the applicant to commence a life with his family in Mazar-e-Sharif without family or tribal support.

2. The Authority made express reference to having had regard to the circumstances raised by both the applicant’s representative and the UNHCR recommendations, considering the reasonableness of relocation. The Authority made reference to the UNHCRs view that the reasonableness of relocation is dependent on the effective availability of traditional support mechanisms provided by members of the applicant’s extended family or ethnic group and that the only exceptions for the requirement of external support are single able-bodied men and married couples of working age without identified specific vulnerabilities. Reference was made that such persons may in certain circumstances be able to subsist without family and community support in urban and semi‑urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic needs of life that are under effective government control. The Authority made reference to DFAT advising that traditional extended family and tribal member structures are the main protection and coping mechanisms for people in Afghanistan, however, in practice, lack of financial resources and employment opportunities are the greatest constraints to successful internal relocation which is generally more successful for single men of working age, although lack of family or tribal networks for single men can impact on their ability to reintegrate into the Afghan community.

3. The Authority made reference, in assessing the applicant’s ability to relocate to Mazar-e-Sharif having considered that the applicant presents as a single 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. The Authority found the applicant does not have family or tribal support in Mazar-e-Sharif and his family continue to reside in Pakistan. The Authority was satisfied the applicant has the necessary skills and capacity to subsist in Mazar-e-Sharif.

4. The Authority made reference to country information indicating that Mazar-e-Sharif is under the control of the Afghan Government and that DFAT reports that whilst unemployment and underemployment are high across Afghanistan large urban areas offer greater opportunities for employment and access to services with Mazar-e-Sharif being reported as one of the biggest commercial and financial centres in Afghanistan. The Authority made reference to agriculture, wholesale, retail and manufacturing and construction being the main sectors of employment. The Authority accepted that despite there being relatively more employment opportunities in Mazar-e-Sharif, there is unemployment and underemployment.

5. The Authority made reference to the applicant’s personal circumstances and the fact that he had no formal education, worked as a street vendor from the age of 12 and at the age of 13 moved to Khozdar to learn shoemaking, a trade which he engaged in from 2001 to 2012, including running his own shop for over four years in Quetta. The Authority made reference to the applicant not having worked in Australia but having demonstrated that he is resilient and resourceful. The Authority found the applicant will be able to obtain employment to enable him to subsist in Mazar-e-Sharif.

6. The Authority accepted that the applicant’s wife and child are residing in Pakistan and that the applicant does not have family members in Mazar-e-Sharif to assist him on return. The Authority found the applicant would be arriving without dependents as a single man of working age. The Authority made reference to the applicant indicating he needs to support his family and made reference to his wife supporting herself through undertaking sewing work. The Authority found the applicant would not be required to find accommodation or meet other needs for his family in Mazar-e-Sharif.

7. The Authority found the applicant has previously established himself in Pakistan where he lived and worked for approximately 20 years, having supported his family since the age of 12 and since his arrival in Australia has established new social networks and obtained accommodation following his release from detention. The Authority found the applicant is familiar with establishing himself in new locations including obtaining accommodation and employment without such support. The Authority was satisfied that the applicant has demonstrated the ability and capability of establishing himself in new locations despite a lack of family and other connections.

8. It was in those circumstances that the Authority then turned to the submissions that the applicant’s lack of education and limited skills, together with his lack of connections, will cause difficulties in finding employment and will impact on his ability to relocate successfully in a new area. Nonetheless, the Authority was satisfied the applicant has the skills, life experience, and resilience to relocate and establish himself in an area in Mazar-e-Sharif where employment, accommodation, and other services would be available to him.

9. The Authority made reference to being in Mazar-e-Sharif requiring the applicant continuing to be separated from his family. The Authority made reference to the applicant having demonstrated the capacity and willingness to depart from his family for an extended period whilst in Australia and country information indicating that Hazaras across Afghanistan regularly travel for employment opportunities.

10. The Authority found that the applicant is a single able-bodied man with no health problems or other specified vulnerabilities identified by the UNHCR as requiring durable support, that it was reasonable in the circumstances for the applicant to relocate to Mazar-e-Sharif despite the separation from his family. The Authority found that general violence in Mazar-e-Sharif is sporadic and, taking into account the country information relating to the situation in Mazar-e-Sharif and the applicant’s personal circumstances, the Authority found it was reasonable for the applicant to relocate to Mazar-e-Sharif where he does not face a real risk of serious harm.

1. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act.

Proceedings before this Court

1. The grounds of the further amended application are as follows:

   2. The IAA erred in its assessment of the reasonableness of relocation by failing to consider the conflicting country information before it that the presence of a particular ethnic community in Mazar-e-Sharif did not make relocation reasonable.

   Particulars

   The conflicting country information is set out at:

   i. page 84 of the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan”, 19 April 2016;

   ii. Professor William Maley’s report dated 24 July 2016, at CB 117-119;

   iii. the submissions of the Applicant to the IAA dated 16 November 2016, at CB 183.

   3. The IAA erred by failing to complete its statutory task of determining whether relocation was reasonable.

   Particulars

   The incompleteness of the assessment of the reasonableness of relocation to Mazar-e-Sharif is comprised of:

   i. the failure to take into account the IAA’s own finding that the Applicant would be exposed to societal discrimination if he were to relocate;

   ii. the failure of the IAA to examine with the required referability to the Applicant’s particular circumstances his ability to obtain employment there.

2. Mr Guo of counsel confirmed that only Grounds 2 and 3 are pressed and that Ground 1 was abandoned.

Consideration

Ground 2

1. Mr Guo submitted that there was conflicting country information that required express consideration and findings by the Authority. I reject the premise of the submission. The material to which the Court was taken was not inconsistent country information. Neither the UNHCR report material to which the Court was taken, nor Professor Malley’s report, nor the submissions identified inconsistent and conflicting country information that required an express finding in relation to the same.

2. It is apparent, on a fair reading of the Authority’s reasons, that the Authority had a meaningful and genuine engagement with the submissions and country information provided by the applicant’s representative. Regarding the material to which Mr Guo took the Court to contend that there was an inconsistency with facts concerning the ultimate conclusion reached in the UNHCR report, such conclusion was expressly referred to and picked up by the Authority’s reasons. It was not necessary for the Authority to refer to all the country information.

3. I do not accept the material to which the applicant referred in respect to alleged inconsistency on pages 84 and 85 of the UNHCR report gave rise to any inconsistency or any conflict that required express findings. The Court finds that there is no proper basis to infer that the Authority failed to take into account the whole of the UNHCR guidelines or failed to take into account the whole of William Maley’s report or the submissions of the applicant. The Authority’s comprehensive reasons summarised above are inconsistent with any such inference. No jurisdictional error as alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, Mr Guo submitted that there had been a failure to take into account societal discrimination and/or the applicant’s particular circumstances. The Authority’s reasons, on a fair reading, took into account both societal discrimination as well as the applicant’s personal circumstances in determining whether it was reasonable for the applicant to locate.

2. The Authority’s reasons reflect a factual nuanced assessment in relation to the applicant’s personal circumstances. That nuanced assessment took into account also the applicant’s illiteracy and his work experience. The Authority completed its statutory task and made findings that were logical for the reasons given by the Authority. No jurisdictional error as alleged in Ground 3 is made out.

Conclusion

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

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  24 January 2018