BOS15 v Minister for Immigration
[2017] FCCA 745
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOS15 v MINISTER FOR IMMIGRATION | [2017] FCCA 745 |
| Catchwords: MIGRATION – Review of International Treaties Obligation Assessment – applicant claiming a fear of harm in Afghanistan – applicant’s claims of past harm rejected and the risk of harm from generalised violence found not to be significant – whether the Assessor misconstrued or misapplied the test for complementary protection considered – reviewable legal error established. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: SZSFF v Minister for Immigration [2013] FCCA 1884 |
| Applicant: | BOS15 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2132 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Clark |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the International Treaties Obligation Assessment made on 1 July 2015 was not made in accordance with law.
The first respondent is restrained by himself or by his Department, officers, delegates or agents, from relying upon the assessment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2132 of 2015
| BOS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of an International Treaties Obligation Assessment (ITOA) made on 1 July 2015. There is no dispute that the Court has jurisdiction to review the ITOA.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Afghanistan.[1] The applicant arrived in Australia on 6 June 2010 as an offshore entry person.[2] On 6 November 2010, the applicant made an application for a protection visa.[3] On 1 February 2010, a delegate of the Minister (delegate) decided to refuse to grant the applicant a protection visa.[4]
[1] Court Book (CB) 357
[2] CB357
[3] CB27-65
[4] CB67
On 17 February 2011, the applicant applied for an Independent Merits Review.[5] On 1 December 2011, the Independent Merits Reviewer (Reviewer) affirmed the decision of the delegate.[6]
[5] CB84
[6] CB263
Judicial review was sought and refused in 2012, though in 2014 the applicant was advised that a re-assessment of his claims would be made, given the authority of Minister for Immigration v SZQRB.[7]
[7] [2014] FCAFC 33; CB357
On 2 October 2014, the Minister commenced an ITOA in relation to the applicant’s claims.
The applicant’s case before the Assessor included claims and evidence that:
a)he had a well-founded fear of persecution in Afghanistan due to a fear of mistreatment or violence from the Taliban because of his being of an ethnic and religious minority, that is, a Hazara and Shia Muslim. He also claimed to have a well-founded fear of persecution arising from being identified as pro-Western and/or anti-Taliban given that he had fled Afghanistan to seek asylum in Australia;[8]
b)he had a well-founded fear of persecution arising from attacks which had been carried out on him after he had forced out a tenant of one of his houses in Kabul by persons who had been preparing to carry out suicide attacks;[9]
c)there were substantial grounds for believing that as a necessary and foreseeable consequence of his being returned to Afghanistan he would suffer significant harm on the basis of the same evidence as that relied upon in relation to his Convention claims.[10]
[8] CB362-363
[9] CB359-362
[10] CB273-275
The Assessor found the claim detailed at [7(b)] above was not plausible and did not accept it.[11] The applicant also claimed to fear harm as a returnee from a Western country who will be perceived as a spy, and because his personal details were disclosed on the Department’s website in 2014. The Assessor did not accept that the applicant faced a real chance of serious harm in Kabul for any reason.[12] The Assessor found that the applicant’s claims to fear serious harm as a returnee from the West, and as a result of the 2014 website disclosure, were not well founded.[13] For the same reasons the Assessor found that there was not a real risk that the applicant would face “significant harm” within s.36(2A) of the Migration Act 1958 (the Migration Act).[14]
[11] CB368.4, 369.1
[12] CB378.9
[13] CB380.2, 380.9-381.9
[14] CB383.6
Present proceedings
These proceedings began with a judicial review application filed on 30 July 2015. The applicant now relies upon an amended application filed on 20 November 2015. There is one particularised ground in the amended application:
1. The Assessor misconstrued or misapplied the test for complementary protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.
Particulars
a. In finding that the applicant’s fear of serious harm for a Refugees Convention reason was not well-founded, the Assessor found that while “attacks by insurgent groups do occur in the capital, it is usually high profile targets at risk, There is no indication that Hazaras have been specifically targeted by insurgents in Kabul for the sole reason of their race”; CB 378
b. The Assessor’s finding involved an implicit finding that there was a risk to non-high profile targets, even if they were not usually at risk.
c. The country information referred to in the applicant’s submissions to the Assessor permitted that implicit finding to be made: CB 259- 26.
d. the Assessor found that the applicant did not “face a real chance of serious harm in Kabul by Taliban or other AGEs [Anti-Government Elements] for the reason of his Hazara race, Shia religion or actual or imputed pro-Afghan, pro-West or anti-AGE political opinion” : CB378.
e. In finding that there was not a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of his removal from Australia to Afghanistan, the Assessor relied on the “same reasons” as the Assessor had provided in relation to the applicant’s Refugee Convention claims: CB 383. The Assessor thereby erred: SZSFK v Minister for Immigration [2013] FCCA 7.
The only evidence I have before me is the book of relevant documents filed on 3 November 2015. Both the applicant and the Minister made pre-hearing written submissions and also made oral submissions at the trial of this matter on 31 March 2017.
Consideration
There is one ground of review, namely that the Assessor misconstrued or misapplied the test for complementary protection in that he failed to separately consider whether evidence of a risk of harm which he implicitly accepted existed in relation to his consideration of Convention related grounds raised by the applicant, but which were not made out in relation to those Convention grounds, could nonetheless give rise to a complementary protection claim.
The Minister contends that the Assessor’s reasons establish that the applicant did not face a well-founded fear of harm in Kabul for any reason. The ITOA did not turn on a lack of a Convention nexus. The factual basis for the Assessor’s conclusion of a lack of risk of harm were equally relevant in the consideration of both the Refugees Convention and complementary protection criteria. There is no error when considering complementary protection to rely on previous findings concerning an applicant’s refugee claims[15].
[15] See SZSGA v Minister for Immigration [2013] FCA 774 per Robertson J at [56]; SZSHK v Minister for Immigration (2013) FCAFC 125, [2013] 138 ALD 26 at [32], [34]; SZUYK v Minister for Immigration [2016)] FCA 216 per Farrell J at [36]
Further, the Minister contends that, as the Full Court stated in SZSHK v Minister for Immigration[16] at [32], [35]:
[16] [2013] FCAFC 125, (2013) 138 ALD 26
We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.
….
As to SZFSK v Minister for Immigration [2013] FCCA 7, relied on by the appellant at [20] of his written submissions, as Robertson J said in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57], each case must depend on its own facts and on what the decision-maker’s reasoning in fact was. In the present case, the [Tribunal] specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that she did not accept the appellant’s claim.
The applicant relies on my decision in SZSFK v Minister for Immigration[17]. The Minister notes that my decision was distinguished in SZUYK v Minister for Immigration[18] at [35] as there the appellant did not identify any part of his claim which would not satisfy the refugee criterion but may satisfy the complementary protection criterion. The Minister contends that the same applies here.
[17] [2013] FCCA 7
[18] [2016] FCA 216
To the extent that the applicant contends that the Assessor did not understand the difference between a Refugees Convention assessment and a complementary protection assessment he must fail. The Assessor had the benefit of an earlier independent merits review decision and, at [7] of the ITOA, the Assessor set out correctly a comprehensive statement of the potential non-refoulement obligations of Australia under various treaties. Further, I accept the Minister’s submission that the ITOA did not turn on the presence or absence of a Refugees Convention nexus. The Assessor found at least three potential links to the Refugees Convention, these being the applicant’s religion and ethnicity and an imputed political opinion of support for the present government of Afghanistan. The Assessor rejected the applicant’s claims of past harm. The Assessor was entitled to rely upon that factual rejection when considering the applicant’s claims to complementary protection.
Nevertheless, I accept the applicant’s contention that the Assessor fell into error in making a forward looking assessment of the risks of harm facing him. Relevantly, the required assessment was limited to the applicant’s claim of a fear of harm from generalised violence in Afghanistan because other claimed risks of harm had been properly rejected.
As outlined above, the applicant claimed to fear harm in Afghanistan, among other things, on account of his ethnic background as a Hazara. He also claimed that the government of Afghanistan would not be able to provide effective protection for him from the Taliban. In submissions made to the Assessor on 10 November 2014, the applicant provided extensive country information regarding the risks of harm in Kabul specifically, the location where the applicant had lived before travelling to Australia. At [102] to [116] of those submissions[19] this country information was set out by the applicant. Importantly, many of the examples of attacks and bombings related to persons who were not targeted on account of being Hazara. That is, the country information demonstrated that the risk of harm did not just relate to the applicant’s claim to have a well-founded fear of persecution for a Convention reason (that being his ethnicity or religion), but was also relevant to a fear of harm which would be relevant for the purposes of a complementary protection claim. This was made explicit at [159] and [169][20] of the applicant’s submissions.
[19] CB258-264
[20] CB274-275
Further submissions were made on 5 March 2015 which emphasised this issue. At [5] of those submissions country information was provided which referred to the recent increase in civilian deaths and injuries in Afghanistan and noted that this would “expose [the applicant] to greater risks of harm – whether inflicted for Convention-related reasons or otherwise”.[21]
[21] CB301
Also, on 15 April 2015, a recent decision of the Refugee Review Tribunal was provided to the Assessor with a note that the applicant “relies on the country information regarding Afghanistan” referred to by the member in that decision.[22] While the country information in that decision largely related to attacks specifically targeted at Hazaras, there was specific country information related to Kabul noting that an “[u]nprecedented wave of insurgent attacks continued in Kabul, raising concerns over the viability of new [government]”.[23]
[22] CB325
[23] CB341
The Assessor considered the applicant’s claim to fear harm on the basis of his Hazara ethnicity.[24] The Assessor found:[25]
While attacks by insurgent groups do occur in the capital, it is usually high profile targets at risk. There is no indication that Hazaras have specifically been targeted by insurgents in Kabul for the sole reason of their race.
and later:
In the case of the claimant, I find no evidence he had a high profile prior to his departure from Afghanistan or was specifically targeted for serious harm by the Taliban or other insurgency groups.
[24] CB377-378
[25] at CB378
The Assessor finally concluded that:
I find his fear of serious harm in Kabul for these Refugees Convention reasons is not well founded.
The Assessor also rejected the applicant’s claim to have a well-founded fear of persecution for a Convention-related reason in relation to his being a failed asylum seeker or returnee from a Western country[26] and because of a mistaken release into the public domain of personal information of the applicant by the Minister.[27]
[26] CB380
[27] CB382
Given the above, and particularly the findings referred to above at [20], the Assessor must be taken to have found that the applicant faced some chance of harm in Kabul in that it was accepted that there were insurgent attacks in Kabul, and while there was a finding that it was usually high profile targets at risk, there was no finding that it was only high profile targets which were at risk. Such a finding was, with respect, not open to the Assessor on the basis of the country information referred to above and by the applicant, as there was extensive country information referring to recent civilian deaths in Kabul, not merely deaths of Western, government or military targets. Further, that country information showed that the mere fact that while attacks may have been targeted at high profile targets, that did not mean that civilians were not also killed, see for example the attacks referred to at [110(b)], [110(d)], [110(g)], [110(j)], [110(l)], [110(p)] of the applicant’s submissions to the Assessor.[28] However, given that the Assessor found such fear of harm was not related to the applicant’s Refugees Convention attributes, it did not give rise to a well-founded fear of harm for a Convention reason.
[28] CB261-262
The Assessor then turned to a consideration of the complementary protection provisions. In doing so he found:[29]
As I have found in Section 4 Findings of Fact/Credibility and in Part B, Section 4. Is the Fear Well-Founded?, there is not a ‘real chance’ that the claimant faces harm for any of the reasons claimed, and for the same reasons I am not satisfied that there is a ‘real risk’ that the claimant would face significant harm as a necessary and foreseeable consequence of his removal from Australia to Afghanistan.
[29] CB383
The applicant contends that, given the findings referred to above, the Assessor in his reasoning in relation to the complementary protection criterion fell into error. The reason can be shortly stated; the Assessor implicitly found that the applicant was at some risk of harm in Kabul owing to insurgent attacks, but found these were not related to his Refugees Convention attributes, however, in the context of the complementary protection claim the fact the harm was not targeted at him because of those attributes was not relevant, and therefore the Assessor was then required, in order to adequately consider the complementary protection criteria, to independently consider whether or not this risk of harm could constitute a basis for a complementary protection claim. The applicant contends that the Assessor did not do this. The applicant had made explicit in his submissions that he relied on the evidence referring to the risk of harm in Kabul whether on the basis of a Convention reason or not. While there is nothing inherently wrong with a decision maker referring back to reasons and findings made in the context of Convention criteria when considering the complementary protection criterion and not engaging in a separate analysis, this approach cannot be taken where, as here, Convention claims are rejected because of a lack of a Convention nexus, but where there is still a harm identified which could be relevant to the complementary protection criterion.
If there was no proper consideration of that risk of harm either in relation to the Refugees Convention assessment or the Assessor’s general fact findings, there could not be a proper assessment for the purposes of the complementary protection assessment, given its extreme brevity. In the complementary protection assessment, the Assessor simply rejected the applicant’s claims “for the same reasons” as had been given earlier.
The Minister relies on the following paragraph under the heading “Is the Fear Well Founded?”:[30]
In considering the above cited country information relating to Kabul in conjunction with the claimant’s background and circumstances, I find it is safe and reasonable for the claimant to reside in Kabul in the reasonably foreseeable future. Consequently, I find the claimant does not face a real chance of serious harm in Kabul by the Taliban or other AGEs for reason of his Hazara race, Shia religion or actual or imputed pro-Afghan, pro-West or anti-AGE political opinion. Therefore, I find his fear of serious harm in Kabul for these Refugees Convention reasons is not well founded.
[30] at CB378
There are two difficulties with reliance upon that paragraph for the purposes of the later complementary protection assessment. The first is the express link to the Refugees Convention referred to in the paragraph. Secondly, and perhaps more importantly, the finding purports to be a finding of absolute safety for the applicant in Kabul. If the Assessor was intending in that paragraph to deal with the claim of harm as a result of generalised violence in Afghanistan generally and Kabul in particular it was not open to him on the material before the ITOA, which identified in voluminous detail the numerous acts of violence perpetrated in Kabul and elsewhere. The only assessment available was that there was some risk of harm to the applicant as a result of generalised violence. The question to be determined was whether that was a real risk. The assessment of that risk logically and naturally arose as part of the complementary protection assessment, precisely because it was an assessment of the risk of generalised violence, not a risk of targeted harm in relation to a Refugees Convention attribute.
In order to properly assess that risk the Assessor would have needed to consider not simply the risk of harm but also the exclusionary provisions in s.36(2B) of the Migration Act. In that regard, the observations of this Court in SZSFF v Minister for Immigration[31] are apposite:
Nevertheless, the Minister accepts that s.36(2B)(c) contemplates that a risk may be faced by a section of the population and by the applicant personally, as the applicant states at particular (e). Properly construed, the complementary protection provisions and, specifically, s.36(2B)(c) emphasise the requirement that the real risk of significant harm must be a personal risk. That is, it must be a risk which is faced by the individual personally in light of the individual’s specific circumstances.
The prevalence of serious human rights violations (in the context of generalised violence) in the destination country will not, of itself, be sufficient to engage a non-refoulement obligation for all people who may be returned to that country. However, where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, an assessment of the level of risk to the individual may disclose a sufficiently real and personal risk to engage a non-refoulement obligation under the ICCPR and/or CAT. As such, s.36(2B)(c) does not necessitate in all cases that the individual be singled out or targeted for any particular reason. What is ultimately required is an assessment of the level of risk to the individual and the prevalence of serious human rights violations is a relevant consideration in that assessment.
[31] [2013] FCCA 1884 at [33] – [34]
In my view, there was no assessment of the risk of generalised violence in the Assessor’s Refugees Convention assessment which foreclosed further consideration for the purposes of the complementary protection assessment. There was no meaningful engagement by the Assessor with the claimed risk of generalised violence for the purposes of the complementary protection assessment. The Assessor thus fell into error. The applicant is therefore entitled to the relief that he seeks.
In that connection, while the merits of the assessment under review are beyond the scope of this proceeding, it is plain that conditions in Afghanistan generally and Kabul in particular have worsened considerably since this ITOA.[32]
[32] See for example the decisions of the Administrative Appeals Tribunal in 1504646 (2017) AATA 170; 1415785 (2016) AATA 4268 and 1319759 (2016) AATA 3858
Conclusion
The applicant has established that the ITOA is affected by a reviewable legal error. I will grant the declaratory and injunctive relief sought by the applicant.
I will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 May 2017
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