BND15 v Minister for Immigration

[2017] FCCA 1226

FEDERAL CIRCUIT COURT OF AUSTRALIA

BND15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1226

Catchwords:
MIGRATION – Alleged failure to consider claims – relocation – asking correct questions in relation to whether it was reasonable for the applicant to remain in Kabul – no error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

Applicant: BND15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1728 of 2015

Judgment of: Judge McNab

Hearing date: 21 March 2017

Date of Last Submission: 21 March 2017

Delivered at: Melbourne

Delivered on: 8 June 2017

REPRESENTATION

Counsel for the Applicant: Ms Karapanagiotidis

Solicitors for the Applicant: MP Migration Law

Counsel for the Respondents: Mr Yuile

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 27 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1728 of 2015

BND15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 27 July 2015 and amended on 6 March 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 July 2015. By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant is a citizen of Afghanistan who comes from Logar, where his family and fiancé live. He is of Tajik ethnicity and is a Sunni Muslim. The Applicant has resided in Kabul since 2005. He has worked for the Afghan government including as a teacher, for the EU and NGOs as a security guard, and most recently as a teacher in physics, sport and English.

3. On 3 December 2012, the applicant applied for the visa. His grounds for protection included that:

   a)he was known to the Taliban;

   b)he would be imputed to be pro-Afghan Government and pro-West;

   c)he would be regarded as an infidel due to his work history; and

   d)the threat to the applicant was exacerbated by his brother working as a police officer at Kabul airport.

4. On 27 March 2014, the delegate refused to grant the visa. On 17 June 2015, the applicant appeared before the Tribunal.

5. The Tribunal, by decision dated 1 July 2015 affirmed the decision of the delegate. The Tribunal member considered the applicant’s link to the government to be ‘tenuous and limited’, noting that:

   The Tribunal considers that the applicant’s connections to the government to be tenuous and limited. He has been employed twice in positions that are in the public sector, in his days in the health field, which ceased in 2006, and more recently as a teacher. The Tribunal does not accept that these low level roles in the nominal public service would lead the Taliban to impute that the applicant is pro-Afghan government, or would lead them to seek to harm the applicant because of his employment in these publically paid roles.[1]

   [1] Tribunal decision dated 1 July 2015[46].

6. The Tribunal also rejected the applicant’s claim relating to his imputed political opinion arising from his employment as a security guard, noting that the applicant was no longer employed as a security guard and in any event, he had never personally received threats or been harmed.[2] The Tribunal considered that:

   The Tribunal does not accept that any Taliban or insurgent group who have the ability to operate in Kabul would seek to target the applicant, a low level security guard employee for a period of time that is now over. The Tribunal considers that any threats against the applicant because of his employment made by the Taliban up to 2012 are no longer relevant, as the applicant has moved on from that role and the Taliban, now and in the foreseeable future, would not target the applicant for such a limited position held by the applicant in the past. The Tribunal does not consider that the applicant has any reason to fear being harmed arising from a death threat received in the past or due to the holding of his cousin overnight by the Taliban in September 2012. The Tribunal does not accept that the Taliban would seek to harm the applicant arising out of any pro International Community political opinion arising from employment that ceased at least 4 years ago, or as determined in this decision, for any other reason.[3]

   [2] Ibid [68]-[70].

   [3] Tribunal decision dated 1 July 2015[71].

7. The Tribunal considered the applicant’s claim that he was at risk as a returnee from the West/failed asylum seeker/accused of spying/imputed political opinion arising from living in the West, concluding that the applicant would not be harmed for having resided in the West.[4] The Tribunal considered that the applicant could return to Kabul and remain there without returning to Logar to see his family.[5]

   [4] Ibid [81]-[84].

   [5] Ibid [81]-[84].

8. The Tribunal also did not accept that there was a real chance or real risk that the applicant would be targeted on return to Kabul due to increased criminality in Kabul or due to the withdrawal of foreign troops from Afghanistan.[6]

   [6] Ibid [92], [105].

Grounds of Review

1. The applicant raised three grounds of review in his amended application, including that the Tribunal erred by:

   a)failing to consider an integer of the applicant’s claims, namely the applicant’s ‘strong and long association with the government and foreign organisations’, and the risk posed to the applicant by his brother’s employment as a police officer ;

   b)failing to deal with or misunderstanding the applicant’s claims to have received death threats from the Taliban; and

   c)making unreasonable findings in relation to the expectation that the applicant remain in Kabul, or by failing to ask itself the correct questions in addressing this aspect of the applicant’s claim.

2. The respondent submits that there was no error made by the Tribunal, and in response to the applicant’s grounds submits that the Tribunal:

   a)fully and properly considered all of the applicant’s claims, individually and cumulatively;

   b)properly considered the claims relating to death threats; and

   c)properly considered the necessary matters relating to relocation.

Consideration

Ground one: fear of persecution arising from the applicant’s brother’s employment as a policeman in Kabul

1. The Tribunal recorded the applicant's claims regarding his brother and noted that he was employed as a police officer at the Kabul airport.[7]

   [7] Tribunal decision dated 1 July 2015 [19]-[20].

2. The Tribunal did not accept the claim that the applicant would be harmed because of his brother.[8] The Tribunal stated:

   [w]ith respect to his family members, the delegate noted that they had not come to harm, despite living and working in Kabul. The delegate did not accept that the applicant would be harmed because of his brother the police officer, or two brothers who continue to be teachers in Logar, who have not been harmed because of their positions.[9]

   [8] Ibid [27].

   [9] Ibid.

3. The Tribunal made a cumulative finding which included a reference to the applicant’s background, claims and circumstances and held that it did not accept that there is a real chance that the applicant will be persecuted for one or more of the Convention reasons if he returns to Afghanistan.[10] In my view, that finding included a reference to the claims made in relation to the applicant's brother’s employment as a police officer.

   [10] Ibid [119].

4. I can discern no error in the manner in which Tribunal considered the applicant’s claims because of a fear of persecution arising from his brother's occupation as a policeman.

Strong and long association with government and foreign organisations and/or cumulative claim

1. The assertion that the applicant had a strong and long association with the government and foreign organisations came from the submissions made by the applicant's representatives to the Tribunal.[11] The reference to “strong and long” was simply a characterisation made by the applicant through his representative and is not something that the Tribunal had to accept as a matter of fact. A failure on the part of the Tribunal to make specific reference to “strong and long connections” is not indicative of error.

   [11] Court book 108.

2. The Tribunal found that:

   a)The applicant worked for the Department of Health as a radiologist between 2002 – 2005 and 2005–2006. It also recorded the applicant stated that he had never been threatened because of that work and that he had a little concern arising out of that employment.[12]

   b)The Tribunal recorded the applicant's evidence in relation to his more recent employment as a teacher and that he had not received any threats of harm arising from this employment, including his teaching of English. The Tribunal also noted the applicant had two brothers who were employed as teachers, one in Logar and one in Kabul, and that the applicant was not aware of any threats that had been made against them and that they had not been harmed.[13] The Tribunal made reference to country information.[14]

   c)At [61] the Tribunal concluded that the applicant’s connections to government were tenuous and limited and set out reasons for that finding.

   d)The Tribunal considered the applicant's claims that he will be targeted because of imputed pro-international interests arising from his work for the government and international interests at his residence in Australia, as well as imputed support for the international military force. It found that there was no basis for the claim.[15]

   e)The cumulative findings at [119]-[120] plainly stated that the Tribunal had considered the matters individually and cumulatively and had done so after setting out in detail the claims made by the applicant which it had considered prior to making a cumulative findings. I discern no error in the Tribunal decision in relation to this ground.

Ground two: failure on the part of the Tribunal to deal with and/or misunderstanding the applicant’s claims to have received death threats from the Taliban

[12] Tribunal decision dated 1 July 2015 [49].

[13] Ibid [50].

[14] Ibid [51]-[57].

[15] Tribunal decision dated 1 July 2015 [72].

1. At [19] the Tribunal set out a statement provided by the applicant to the Tribunal. That statement included a threat that had been made to the applicant by a letter sent to the applicant in 2012 stating that the Taliban council had decided that the applicant should be killed as he worked for foreigners, Jews and Christians.

2. At [23] the Tribunal noted the findings of the delegate in relation to the threats made to the applicant in Logar.

3. At [71] the Tribunal made findings that it did not accept that any Taliban or insurgent group who had the ability to operate in Kabul would seek to target the applicant “a low level security guard employee for a period of time that is now over.”

4. The Tribunal considered that any threats against the applicant because of his employment made by the Taliban up to 2012 were no longer relevant as the applicant had moved on from that role and the Taliban now and in the foreseeable future would not target the applicant for such a limited position held by the applicant in the past.

5. The challenge to the Tribunal's decision on this ground is essentially an attempt at merits review. I can discern no jurisdictional error arising from the manner in which the Tribunal dealt with the applicant’s claims arising from threats made by the Taliban because of his employment.

Ground three: the Tribunal erred in considering the reasonableness of expecting the applicant to remain in Kabul in making findings that were unreasonable and/or in failing to ask itself the right question

1. The particulars under this ground were in the following terms:

   a)The applicant claimed that he would need to return to his home in Logar because of cultural expectations and familial ties, including his parents and fiancé.

   b)The Tribunal considered that the applicant had already demonstrated through his presence in Australia that he did not need to return to Logar for such reasons.

   c)In reasoning as it did, the Tribunal failed to engage in a proper consideration of the reasonableness of expecting the applicant to remain in Kabul and/or the Tribunal made findings that were unreasonable on the evidence and material before it.

2. At [32] of the applicant’s submissions to this court, he stated in relation to the Tribunal’s consideration of the practicability of relocation –

   …the Tribunal only appeared to consider the applicant's employment prospects and did not consider other matters, such as his family situation and commitments that were clearly relevant to the issue of remaining exclusively in Kabul.

3. I do not accept the submission that the Tribunal has failed to consider the applicant’s claims other than his employment prospects in relation to the practicability of him remaining in Kabul. At [80] the Tribunal noted that:

   [t]he applicant had stated that he came from a culture where it was expected that he would attend special events, and thus he could be harmed on going back to Logar, where someone family remained. The applicant also stated his fiancée was in Logar and he would be expected to return there for a wedding.

4. In its decision, the Tribunal noted that:

   a)if the applicant remained in Australia, he would be unable to participate in those cultural activities as well;[16]

   b)it would be possible for the applicant to live in Kabul and not to attend family events in Logar;[17]

   c)the applicant had travelled to Australia with the support and agreement of his family;

   d)the Tribunal acknowledged that the applicant faced cultural pressures to attend community and family events but noted that the applicant had left Afghanistan to get away from harm in his home region;

   e)the Tribunal held that this was done with the support and agreement of the same family members he now claims would expect him to return to his home area.

   [16] Tribunal decision dated 1 July 2015 [81].

   [17] Ibid [82].

5. The Tribunal also found that:

   a)the applicant’s brother in Kabul had decided not to return to Logar for fear for his safety and had broken with the same cultural expectations that the applicant had stated required family members to return to locations like Logar;

   b)the applicant had previously resided in Kabul for many years and this was made as a positive finding by the Tribunal.[18]

   [18] Ibid [84].

6. The applicant set out his framework of objections to relocation and the Tribunal has considered those objections.[19] The Tribunal considered family connections and the capacity for the applicant to return to Kabul and work in that city. None of the singular considerations relevant to the applicant in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 arise in this proceeding.

   [19] Submissions of the application, court book 165 – 168.

7. In my view, there was no failure on the part of the Tribunal to give consideration to the individual circumstances of the applicant and the Tribunal has considered the particular objections raised by the applicant to relocation from Logar to Kabul.

8. Further, whilst the applicant by his submissions raised an assertion of legal unreasonableness, I can discern no basis for a finding that the decision of the Tribunal was plainly unjust, arbitrary, capricious, irrational or lacking in evident or intelligible justification. The Tribunal gave a detailed and logical consideration to the applicant’s claims. It was not the case that the Tribunal decided the applicant’s claims in relation to relocation on the sole ground that the applicant’s presence in Australia meant that cultural considerations had no impact on the applicant’s residence in Kabul. The Tribunal’s decision considered the cultural/familial issues raised and concluded that it was not unreasonable for the applicant to return to live in Kabul.[20]

   [20] Tribunal decision dated 1 July 2015.

9. For the foregoing reasons, I dismiss the applicant’s application and order that the applicant pay the respondent’s costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 8 June 2016