Bot15 v Minister for Immigration
[2017] FCCA 1266
•15 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOT15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1266 |
| Catchwords: MIGRATION – Whether jurisdictional error on the part of the Tribunal – whether the Tribunal failed to consider whether it was reasonable to expect the applicant to use a nine hour route to travel between Bamiyan and Kabul – whether the applicant’s claims were considered – whether the Tribunal failed to consider the particular circumstances of the applicant. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 |
| Applicant: | BOT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1774 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 22 March 2017 |
| Date of Last Submission: | 22 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1774 of 2015
| BOT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
By an application filed on 30 July 2017 and amended on 8 February 2017, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 6 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’).
The applicant was born in 1987 and is a national of Afghanistan from the Bamiyan Province. He is of Hazara ethnicity and is a Shia Muslim. He and his family left Afghanistan in 1993 for Iraq, where he resided until his return to Bamiyan in 2012. The applicant completed his schooling in Iran and was employed as a labourer and welder from 2000 until 2012.
He alleges that upon his return to Bamiyan, there was a dispute regarding the ownership of a house and land belonging to his grandfather with people of Pashtun ethnicity, and he was subjected to personal harm.
The applicant stayed in Bamiyan for four weeks before travelling to Kabul, and then to Indonesia via India and Malaysia. He arrived on Christmas Island on 5 August 2012.
He applied for the visa on 12 December 2012. The applicant raised a number of claims for protection, including that he fears persecution on the basis of:
a)his race and religion; and
b)his membership of particular groups, being a ‘returnee from the West/asylum seeker’ and ‘an individual who has resided outside of Afghanistan for a prolonged period.’
On 17 July 2013, the delegate refused to grant the visa.
On 23 July 2013, the applicant applied to the Tribunal for review of the decision of the delegate.
The applicant appeared before the Tribunal on 16 April 2015. Time was granted to the applicant after the hearing to make a further submission. The applicant’s representative claimed in those further submissions that:
a)he did not have any connection to Bamiyan and lacks familiarity with the area;
b)he has an obligation to travel to see his family and fiancé; and
c)the upcoming withdrawal of foreign troops increased the risk to the applicant.[1]
[1] Tribunal decision dated 6 July 2015 [27].
On 6 July 2015, the Tribunal affirmed the decision under review. The Tribunal raised credibility concerns regarding the applicant’s denial that he had been personally harmed in Bamiyan at the entry interview and did not accept the applicant’s representative’s submissions regarding the reasons for this omission.[2]
[2] Tribunal decision dated 6 July 2015 [45].
The Tribunal did not accept that the applicant had a real chance of serious harm on the basis of his Hazara ethnicity or his Shia religious belief.[3] In addition, the Tribunal did not accept applicant’s claim that he will be targeted or accused of being a spy, or will be perceived as having a Western identity as a result of residing outside of Afghanistan and in a Western country.[4]
[3] Ibid [65].
[4] Ibid [86]-[87].
The Tribunal member acknowledged that return to Bamiyan would be difficult for the applicant with “limited family support”, but found that the applicant could subsist with or without family support.[5] The Tribunal did not accept that the applicant was the primary carer for his family or that he had serious concerns for his family in Iran.[6]
[5] Ibid [98].
[6] Ibid [99].
In relation to road travel, the Tribunal considered that there was a relatively secure route between Bamiyan and Kabul which although longer, is assessed as having a low threat of insurgent or criminal harm.[7] The Tribunal did not accept that the extra travel constituted serious or significant harm.
[7] Ibid [79].
The Tribunal considered the effect of troop withdrawal based on current information available to it at the time, and did not accept that the applicant had a real chance of serious harm or a real risk of significant harm arising from the withdrawal of troops “now or in the foreseeable future”.[8]
[8] Ibid [98].
The Tribunal considered the claims made by the applicant cumulatively and individually and concluded that the applicant did not have a real chance of serious harm, nor would the risk be escalated by the withdrawal of foreign troops.[9]
[9] Ibid [100]-[101].
Grounds of Application and Consideration
The applicant’s grounds of review are extensively particularised. By way of example, the particulars under ground one provide as follows:
1. The Tribunal erred by failing to apply, or by misconstruing, the approach required by Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 (‘SZSCA’)
a) The Tribunal assessed the applicant’s claim on the basis that Bamiyan, in Afghanistan, was the applicant’s home region: see e.g. at [79], [101].
b) The applicant claimed that he could not be expected to remain in Bamiyan for his entire life, and that given the limited facilities in Bamiyan, the applicant would be required to travel to other areas of Afghanistan, and to use the major roads leading out of Bamiyan, which were insecure: CB 259.
c) The applicant referred to country information that suggested:
i) prices for goods and food in Bamiyan were higher than more accessible regions, and that there was a risk of these prices rising further: CB 260, 261.
ii) Bamiyan was one of the poorest provinces in Afghanistan: CB 260.
d) The applicant referred to the road routes from Bamiyan to Kabul, and claimed the most direct route was insecure: CB 259.
e) The applicant referred to a less direct route from Bamiyan to Kabul (the nine-hour route), and claimed that to take this route would take nine hours, as opposed to the direct route, which would take a few hours,. The applicant claimed that he could not be expected to travel nine hours to reach Kabul: CB 259.
f) The Tribunal found that the nine-hour route was “available for the applicant should he wish to travel between Bamiyan and Kabul for the purposes other than his return to Bamiyan after leaving Australia” at [79].
g) The Tribunal, especially in light of the claims made and evidence presented by the applicant, was required to consider whether it was reasonable to expect the applicant to use the nine-hour route, or was reasonable to expect the applicant to remain in Bamiyan: SZSCA at [29], [32].
h) The Tribunal failed to do so and instead considered whether “the extra time for travelling…constitutes serious harm or significant harm”, and found that the answer to this question was no: at [77], [79]. In that way, the Tribunal erred as pleaded.
In SZSCA, the applicant for a Protection visa had stated in his application that he and his immediate family had lived in Kabul since 2007 and that he had worked as a self-employed truck driver since that time. The driver said in his application that his work as a truck driver required him to drive between Kabul, Ghazni and Gajaghori and that from about January 2011 he began to specialise in the transportation of construction materials between Kabul and Gajaghori because it provided him with a higher income.[10] The Tribunal accepted that the Taliban generally targets drivers carrying construction materials and discourages them from doing so and that the Taliban may impute to persons undertaking that activity political opinion supportive of the Afghan government or non-governmental aid organisations. The Tribunal considered it was plausible that the respondent had been warned to desist from such activity.[11]
[10] SZSCA (2014) 254 CLR 317 [2].
[11] Ibid [8].
The Tribunal in SZSCA did not accept that the applicant was a high profile target who would be actively pursued by the Taliban throughout Afghanistan and viewed him as someone who might be harmed if he came to the Taliban’s attention which would likely only occur if he continued to transport construction materials.
At [29] of SZSCA, the majority stated:
The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question of whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned– specifically, whether such an expectation is reasonable.[12]
[12] (2014) 254 CLR 317.
The majority went on to find at [31]:
[31] In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
[32] The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
[33] This matter does not fall to be decided on grounds of procedural fairness. Even if the Tribunal's assumption were correct, that assumption could not provide a complete answer to the question the Tribunal should have addressed. Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.[13]
[13] SZSCA (2014) 254 CLR 317.
It is apparent that the facts in SZSCA are not analogous to those in the present case. The Tribunal found that Bamiyan was the applicant’s home region. The Tribunal found the applicant resided in Bamiyan city from birth to around five or six years old, although the applicant stated that he was not aware of any family in the area. The Tribunal did find that the applicant had stated that when he was deported from Iran on discussing the circumstances with his mother while residing in Herat, his mother had suggested that he return to Bamiyan.[14]
[14] Tribunal decision dated 6 July 2015.
At [56] the Tribunal found that the applicant does not have a serious risk of harm as a Hazara residing in Bamiyan and stated:
The Tribunal discussed this information (country information) to (sic) the applicant, that in terms of locations within Afghanistan, Bamyan (sic) appeared to be one of the most secure locations within Afghanistan for Hazaras. The high concentration of Hazara in this area provides a level of security and protection for Hazaras, that the applicant would be able to take advantage of. The country information appears to demonstrate that the applicant would be in a position to reside in Bamyan (sic) without being subjected to harm. The Tribunal considers that on the country information before it, the applicant does not have a real chance of serious harm or a real risk of significant harm arising from his Hazara ethnicity.
The Tribunal considered travel on the roads in Afghanistan and particularly on the route between Kabul in Bamiyan.[15] At [79] the Tribunal found:
…As stated by the applicant’s agent, there is a relatively secure route, which while longer, provides a route into Bamiyan. This is consistent with the country information provided above regarding the road travel into this location in Afghanistan by certain routes which have been assessed as having a low threat of insurgent or criminal harm. The Tribunal considers that this route is available for the applicant should he wish to travel between Bamiyan and Kabul for purposes other than, his return to Bamiyan after leaving Australia. Given the safety assessment discussed above, the Tribunal considers that the applicant can use these roads to conduct his life as he so chooses. The Tribunal does not consider that the extra time for travelling, that is discussed by the applicant, constitutes serious harm or significant harm, in all the circumstances. The Tribunal finds that the applicant does not have a real chance of serious harm on the road between Bamiyan and Kabul as a Hazara, a Shia, or as a returnee from a Western country. The Tribunal finds the applicant does not face a real risk of significant harm for this reason.
[15] SZSCA (2014) 254 CLR 317 [73]-[79].
This case differs to the facts in his SZSCA as there was no submission put or finding made by the Tribunal that the applicant had to travel outside of Bamiyan in order to earn an income. In that sense the facts are quite different to those in SZSCA where it was clearly put that the applicant had to travel on the roads outside of Kabul in order to earn an income and in so doing would expose himself to a significant risk.
I do not appreciate that there was any submission put to the Tribunal that the personal circumstances of the applicant required that he travel to Kabul and Bamiyan in order to earn an income. I can discern no error in the Tribunal’s decision in relation to the matters raised by ground one of the application. I do not accept that the Tribunal has failed to consider the particular circumstances of the applicant as they were outlined to the applicant and his representative.
Ground two:
The Tribunal erred by misconstruing or misapplying the test for whether the applicant faced harm in reasonable foreseeable future (sic) as a result of the withdrawal of foreign troops from Afghanistan, or otherwise failed to consider the totality of the applicant’s claims to fear harm as a result of the withdrawal of foreign troops.
The particulars under that ground are to the effect that the Tribunal had failed to consider the evidence and all claims made that there was an increasing risk of harm because of foreign troop withdrawals and failed to consider what effect the withdrawal might have when it was completed. It said that the failure to consider the risk of future harm due to growing Taliban activity and the withdrawal of troops and that the Tribunal had fallen into error in misconceiving or misapplying the test as to whether the applicant faced harm in the reasonably foreseeable future as a result of these matters.
At [89] – [96] the Tribunal considered the recent country information regarding the effect of withdrawal of international forces and at [86] concluded that Bamiyan was under the control of Afghan authorities. At [89] the Tribunal referred to the applicant’s claim that the withdrawal of Western forces from Afghanistan will lead to a significant rise in violence. The Tribunal then canvased information in relation to then current information and at [95] concluded:
The Tribunal considers there is a violent situation Afghanistan, and the withdrawal of troops has led to an increase in violence. However the Tribunal does not accept that the withdrawal has led to the deterioration of security to such an extent that the government has lost control of significant locations in Afghanistan, most relevantly for the applicant, location such as Kabul.
The Tribunal gave that consideration in circumstances where it had considered information and made findings that Bamiyan appeared to be one of the more secure locations within Afghanistan for Hazaras.[16] That conclusion also has to be read with the earlier finding that Bamiyan was in the control of the authorities. There is no failure to give consideration the applicant’s claims and this ground fails for that reason.
[16] Tribunal decision dated 6 July 2015 [56].
Ground three:
The Tribunal miscarried in its statutory task of forming for itself, on the material before it, the requisite state of satisfaction under s.65 of the act in relation to the applicant’s claim that he could not support himself in Bamiyan with our family support.
The particulars are to the effect that the Tribunal failed to consider a claim that the applicant had no family in Bamiyan and that his lands were no longer available to him.
At [97] the Tribunal noted that the applicant had travelled to his home area in Afghanistan with relatively little difficulty, identified and found his lands and met people who remembered him and his family and that those people were willing to assist him to the extent that they provided some significant financial assistance.
The Tribunal considered claims raised in relation to a dispute over his land and that he was beaten by the persons he had a dispute with causing harm to his hearing.[17] At [38] – [45], the Tribunal considered the fact that the applicant had not raised this incident at his entry interview. At [46] the Tribunal made a finding that it did not accept that the applicant was harmed on return to Bamiyan and did not accept that the applicant had damaged hearing arising out of any beatings that occurred in Afghanistan as a result of any land dispute.
[17] Ibid [37].
This was a finding that was open to the Tribunal and it further was open to the Tribunal to find that the applicant had returned to Afghanistan and identified his land. The reference to “limited family support” must be read in the context of the paragraph which appears. That paragraph provides as follows:
The Tribunal considers that this information shows that there is the capacity for the applicant to create a new life, with the support of the broader Hazara community, in this area, as has been demonstrated in the past. The Tribunal accepts that the transition back to life and Bamiyan will be challenging for the applicant, given that he has not been living there for some time. He has limited family support there at present. However the Tribunal does note that the applicant returned to that location after he had left Iran, demonstrating that he sees that location as somewhere he could return to after his life in Iran ceased, even without his family support in that area. The Tribunal considers that with the diverse set of skills the applicant has developed over the years of living and working in Iran will assist him in developing his life in Afghanistan, and that he will be able to subsist in Afghanistan on return with or without family support.
It is apparent that the finding that he could return to Afghanistan was made on the basis that he would not need family support and indeed [98] acknowledges that he was without family support in the area. In my view, there is no failure on the part of the Tribunal to consider the claims made by the applicant in respect of his return to Bamiyan.
Ground four:
The Tribunal miscarried in its statutory task of forming for itself, on the material before it, the requisite state of satisfaction under s 65 of the Act, by assessing whether the applicant was at risk of generalised harm in Bamiyan, without considering all of the applicant’s relevant individual circumstances.
At [47] the Tribunal set out the applicant’s claims as to why he believes he cannot return to Afghanistan. Those claims included his Hazara Shia background, his departure from Afghanistan for an extended period in Iran (1993 – 2012) and more recently in Australia from August 2012 onwards. It was said that his extended time in Australia could provide him with a pro-West imputed political opinion and that he could be seen as being a spy.
At [56] the Tribunal concluded that the applicant does not have a real chance of serious harm or real risk of significant harm arising from his Hazara ethnicity.
The Tribunal considered the applicant’s claims that he would be persecuted due to his returning to Afghanistan from a Western country.
At [86] the Tribunal referred to country information and stated:
The Tribunal accepts this country information and does not accept that the applicant will be accused of being or will be targeted because of any accusation of being a spy for either the West or Iranian influences. The Tribunal considers that Bamiyan is under the control of the Afghan authorities. The Tribunal considers that the applicant’s claims that he will be seen as a spy the west to be non-founded, given the large number of people who are moving out and now back into Afghanistan. The Tribunal does not accept that the applicant will be perceived as having any Western identity through the clothes and accent that he has, given that the accent is more Iranian influenced than Western influenced and a variety of clothes in large towns and cities are readily available, and he will not be targeted for this reason.
In relation to claims that the Tribunal had failed to consider that the applicant had no family in Bamiyan, no land in Bamiyan and had limited education and work experience, those matters were considered at paragraphs [97]-[98] of the Tribunal decision which are referred to above.
Ground five:
The Tribunal erred by failing to apply the PAM 3 Complimentary Protection Guidelines.
It was asserted that Tribunal failed to demonstrate any active intellectual engagement with the guidelines or to apply them to the facts of the applicant’s case and failed to consider the part of the guidelines concerning s.36(2B)(c) of the Act.
At [19] of the Tribunal decision, the Tribunal made specific reference to the PAM 3 Complimentary Protection Guidelines. In written submissions filed by the applicant, it is said that the Tribunal’s decision is inconsistent with PAM 3 Guidelines in relation to considering future risk in considering personal circumstances. Given the Court’s findings that the Tribunal has not fallen into error in relation to consideration of those matters, I do not accept that that the Tribunal has failed to take the Guidelines into account in considering the personal circumstances of the applicant. In that regard I refer to the decision of Barker J in AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 in which his Honour rejected a similar argument that the Guidelines were not considered.
In my view, the applicant has not discharged the burden of establishing that the guidelines were in fact not taken into account despite the Tribunal’s express reference to them.
For these reasons this application should be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 15 June 2017
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