BNR15 v Minister for Immigration

[2017] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNR15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 550

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in its consideration of relocation – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B

Cases Cited:
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 54 MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191
Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S154/2002 (2003) 201 ALR 437

Applicant: BNR15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2097 of 2015

Judgment of: Judge Emmett

Hearing date: 22 March 2017

Date of Last Submission: 22 March 2017

Delivered at: Sydney

Delivered on: 22 March 2017

REPRESENTATION

Solicitor for the Applicant: Mr Nigel Dobbie
(Dobbie and Devine Immigration Lawyers)

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2097 of 2015

BNR15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 30 June 2015 (“the Tribunal”).

Background

1. The applicant arrived in Australia as an illegal maritime arrival on 8 June 2012 having departed illegally from Afghanistan.

2. On 3 January 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship.

3. On 9 January 2014, a delegate of the first respondent (“the Delegate”) refused the applicant’s application for a protection visa.

4. On 13 January 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 30 June 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 27 August 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

7. The applicant’s claims and decisions of the Delegate and the Tribunal are summarised in the written submissions of the solicitor for the applicant, as follows:

   “In short, he claimed that he would be harmed in Saudi Arabia because he had a sexual relationship with his neighbour in Saudi Arabia. He claimed that as a married man, he committed adultery. The woman that he claimed to have had the extra-marital affair with is described by the Applicant as being 'a Pashtun Sunni Afghani’. He also claimed that his father left Afghanistan some 35 years before, due to land problems, and that he (the Applicant) could not return to his father's hometown (Kunduz, Afghanistan) because he would be killed to prevent him making a claim for that land.

   On 9 January 2014, a delegate of the First Respondent refused the visa application. The delegate did not accept the Applicant as a credible witness and found that he was prepared to embellish, 'if not fabricate most of his material claims'. The delegate was prepared to accept the land claim made by the Applicant. The delegate found that the Applicant could reside in Kabul, although the delegate framed this finding in the context of a real chance of serious harm.

   On 13 January 2014, the Applicant sought review of the delegate's decision at the Refugee Review Tribunal. On 19 May 2015, the Applicant appeared before the Tribunal to give evidence and to present arguments in relation to the issues arising in the delegate's decision.

   On 30 June 2015, the Tribunal affirmed the delegate's decision.

   Unlike the delegate, the Tribunal found the Applicant to be a credible witness. It accepted that he had the extra-marital affair claimed. The Tribunal also accepted that the Applicant had never been to Afghanistan and that the Applicant's family came from Kunduz. The Tribunal also found that the Applicant faced a real chance of serious harm if he were to go to Kunduz.

   The Tribunal then considered whether the Applicant could internally relocate to Kabul. It found that he could internally relocate to Kabul, such that he was not entitled to Australia's protection.”

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor, Mr Nigel Dobbie.

2. At the commencement of today’s hearing, Mr Dobbie confirmed that the applicant relied on the grounds contained in the initiating application filed on 27 August 2015 as follows:

   “1. The Tribunal misinterpreted the applicable law or misapplied the law to the facts:

   (i) The Tribunal found that there was a real chance that the Applicant would face serious harm for reason of his membership of a particular social group (based on his Tajik ethnicity and or being a Tajik land owner and or being a Tajik returnee) if he had to return to his home province of Kunduz in Afghanistan (p8 at [19]). However, the Tribunal found that the Applicant could internally relocate to Kabul (p17 at [52]). The Tribunal committed jurisdictional error in making that finding. The Tribunal reasoned at [52]

   ... In making this finding the Tribunal has considered his claim that it would not be as easy for him to find work or housing in Kabul as it had been in Australia; however, while it accepts that he might not be able to receive the same type of work or standard of housing in Kabul as he had in Australia, the information before the Tribunal does not indicate, and the Tribunal does not accept that, he would suffer harm or be discriminated against in being denied access to or not being able to engage in employment or find housing and it does not accept that, on the available evidence and information, those factors would make relocation to Kabul not reasonable in his particular circumstances.

   (a) The Tribunal misinterpreted the law because it required that there be an element of discrimination in relation to the Applicant being denied access to or not being able to engage in employment or find housing in Kabul, when there is no requirement that such additional element exist when considering whether internal relocation is reasonable.

   (b) The Tribunal committed jurisdictional error by finding that being denied access or not being able to engage in employment did not constitute harm, or serious harm.

   (c) The Tribunal committed jurisdictional error by finding that not being able to find housing did not constitute harm.

   (d) The Tribunal committed jurisdictional error by adopting a reverse onus test in relation to internal relocation; that is, the Tribunal looked at the factors of housing and employment and whether those factors would make it ‘not reasonable’ for the Applicant to relocate to Kabul, rather than whether relocation to Kabul was reasonable.”

3. Mr Dobbie contended that the Tribunal erred in considering whether the applicant could relocate to Kabul.

4. It is well established that in considering the issue of relocation, the decision maker must consider whether it is reasonable, in the sense of practicable, for a claimant to relocate to a region where, objectively, there is no appreciable risk of the harm feared (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) at 26). Gummow, Hayne and Crennan JJ stated in SZATV at 27, as follows :

   “What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”.

5. Whether or not a claimant can reasonably be expected to relocate depends upon the framework set by the particular objections raised to relocation (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-443; SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 438-439). Further, a decision maker, such as the Tribunal, will fall into error if it fails to address or assess all the factors relevant to relocation identified by the visa applicant (see MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 54; MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 at 202-204). It is for the claimant to advance whatever evidence or argument he wishes and for the decision maker, such as the Tribunal, to decide whether the claims have been made out (see Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 450).

6. The contentious findings of the Tribunal in the case before this Court are found in the following:

   “Having carefully considered the information and evidence before it, the Tribunal considers that, in his particular circumstances, as a Tajik Sunni Muslim who can speak Dari, Arabic and some English, who has considerable work experience, who has been able to adapt to life in a foreign country such as Australia, who comes from a relatively wealthy family (in Afghani terms) who are supportive of him and his situation, in all the circumstances, as a matter of practical reality, it would be reasonable for him to relocate to Kabul if he returned to Afghanistan. In making this finding the Tribunal has considered his claim that it would not be as easy for him to find work or housing in Kabul as it had been in Australia; however, while it accepts that he might not be able to receive the same type of work or standard of housing in Kabul as he had in Australia, the information before the Tribunal does not indicate, and the Tribunal does not accept that, he would suffer harm or be discriminated against in being denied access to or not being able to engage in employment or find housing and it does not accept that, on the available evidence and information, those factors would make relocation to Kabul not reasonable for him in his particular circumstances.”

7. Mr Dobbie submitted that the Tribunal misinterpreted or misapplied the law because the Tribunal required that there be an element of discrimination in relation to the applicant being denied access to housing or not being able to be employed in Kabul, when there is no requirement that such additional element exist when considering whether internal relocation is reasonable. Mr Dobbie submitted that by requiring that there be an element of discrimination, the Tribunal diverted itself from the inquiry required in SZATV as to whether it would be reasonable, in the sense of practicable, for the applicant to relocate to a region where, objectively, there is no appreciable risk of the harm feared.

8. However, fairly read, the Tribunal was not requiring an additional element of discrimination to exist when considering whether internal relocation for the applicant to Kabul was reasonable.

9. The applicant’s submissions to the Tribunal referred to independent country information in relation to internally displaced persons in Afghanistan that stated as follows:

   “Internally displaced persons are among the most vulnerable groups in Afghanistan; many are beyond the reaches of humanitarian organisations. Urban internally displaced people are more vulnerable than non-displaced urban poor, as they are particularly affected by unemployment, limited access to adequate housing, limited access to water and sanitation, and food and security.”

10. At the hearing, the Tribunal put to the applicant that Kabul was the most likely place he would arrive and it is widely considered to be the most secure area of the country and that the Tribunal had considered Kabul as the place to which the applicant could relocate. The Tribunal noted that the applicant said that he did not know anyone in Kabul and would not know the “first thing to do, or where to live, or anything”. The applicant said that he would be in danger as a Tajik Sunni.

11. The Tribunal referred to the applicant’s migration agent’s submissions that for a person to successfully relocate to Kabul, they would usually need family or social networks to tap into, without which it would be difficult to integrate into the community and to find employment and housing. The Tribunal noted that it put to the migration agent that the country information relating to such difficulties faced by internally displaced persons was directed to those who had no work skills, little or no money or assets and no access to money. The applicant was not such a person.

12. The Tribunal then referred to the applicant’s language skills, noting that he is fluent in Arabic, Dari and had basic level English. Further, the applicant had worked as a salesperson in a retail shop in Saudi Arabia for ten years and has worked in Australia as a security guard for two and a half years after completing a related training course. The Tribunal found on the evidence before it, that the applicant had the full support of his family in Saudi Arabia and has demonstrated that he has the skills and ability to successfully adjust and adapt to a new environment, having regard to his past travel and relocation in Australia. It was for those reasons, together with its finding that the applicant comes from a relatively wealthy family who are supportive of him that it was reasonable, in the sense of practicable, for the applicant to relocate to Kabul if he returns to Afghanistan.

13. Having made those findings, the Tribunal noted that it had considered the applicant’s claims that it would not be as easy for him to find work or housing in Kabul as it had been in Australia. However, the Tribunal accepted that he might not be able to find the same type of work or standard of housing in Kabul as he had in Australia; but that on the information before it, the Tribunal did not accept that any inability to obtain work or housing would be by reason of any discrimination. Accordingly, the Tribunal found that it was reasonable for the applicant, in his particular circumstances, to relocate to Kabul.

14. The Tribunal considered all claims and evidence identified by the applicant as being factors relevant to the issue of relocation. The Tribunal’s findings do not disclose any error in its consideration of whether it was reasonable, in the sense of practicable, for the applicant to relocate to Kabul where, objectively, the Tribunal had found that there was no appreciable risk of the harm feared.

15. As stated above, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did not impose into its consideration of relocation that there be an element of discrimination in relation to the applicant being denied housing or work in Kabul. The Tribunal was doing no more than noting that although the applicant may not be able to receive the same type of work or standard of housing in Kabul as he had in Australia, no discrimination existed that would prevent him from obtaining housing or employment in Kabul. I accept the submission of the counsel for the first respondent, Mr Martin Smith, that the Tribunal’s finding was to the effect that the applicant would be able to obtain housing and employment.

16. In the circumstances, the Tribunal’s findings were open to it on the evidence and material before it and there is no error in the manner in which the Tribunal considered relocation and the findings it made in relation to that issue.

17. The applicant’s solicitor, Mr Dobbie, withdrew reliance on ground 1 (b), (c) and (d).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant and his migration agent at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

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

Date: 22 March 2017