BPV17 v Minister for Immigration and Anor

[2020] FCCA 818

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPV17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 818

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied the correct test in relation to complementary protection in light of the Authority’s reasoning concerning the applicant’s wife – whether the Authority failed to engage in a proper consideration of the applicant’s circumstances as to reasonableness of the applicant relocating to Kabul – no jurisdictional error made out – second amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 473CB, 476

Applicant: BPV17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 208 of 2017

Judgment of: Judge Street

Hearing date: 8 April 2020

Date of Last Submission: 8 April 2020

Delivered at: Sydney

Delivered on: 8 April 2020

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov via video link

Solicitors for the Applicant: Chisholm Law

Counsel for the Respondents: Ms C Taggart via video link

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

2. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.

3. Leave is granted to the applicant to rely on the grounds insofar as the applicant seeks to do so in the document filed on 11 March 2020 and directs that a second amended application in identical form insofar as the grounds are concerned with linethrough deletion of the paragraphs abandoned be filed and served on or before 16 April 2020.

4. The second amended application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 8 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 208 of 2017

BPV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 16 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“the Protection visa”). 

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 17 November 2012. 

4. The applicant was found to have been born in a particular village in the Ghazni Province. 

5. The applicant was found to be of Hazara ethnicity and claimed to fear harm on the basis of his ethnicity and also on the basis of agnostic beliefs and/or the perception that he is of Shia or Christian religion, and the basis of his father’s activities and/or being imputed as having an anti-Taliban or pro-western political opinion or his membership of a particular social group being failed asylum seekers and apostates in Afghanistan.

6. On 23 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of the Protection visa.

7. On 19 October 2016, the Authority wrote to the applicant explaining that the application for the Protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information, the Court identified in the Authority’s reasons. 

8. The Authority identified the background to the Protection visa application and had regard to the material referred by the secretary under s 473CB of the Act.

9. The Authority had regard to the submissions in so far as they engaged with the Delegate’s decision and referred to the further submissions provided and was satisfied that there were exceptional circumstances to justify considering that information. 

10. The Authority summarised the applicant’s claims and identified the relevant law including in an annexure of applicable law incorporated by pagination in the Authority’s reasons. 

11. The Authority found that the applicant worked as an unpaid apprentice mechanic between 2005 and 2007 and worked briefly in Australia as a shelf stacker in a grocery and that he had travelled to Pakistan for a fortnight in 2012 before travelling through Malaysia and Indonesia on his way to Australia. 

12. The Authority referred to the applicant’s claims about his father being missing and presumed dead. The Authority referred to the applicant confirming that he had lied about his family and that they had stayed in Pakistan but that they are now back in a particular district, and that his father is alive in Indonesia and was not an interpreter but a cook. 

13. The Authority did not accept the evidence that the father was an interpreter, a cook, or occupied any role for the United States Military or any other government or military or international body. 

14. The Authority did not accept that the applicant and his father, or any member of his family, were Christians, agnostic, or have otherwise abandoned their Shia faith. The Authority did not accept that the applicant’s father was abducted or otherwise targeted for harm by the Taliban or any other Anti-Government Elements (“AGE”) for any reason or that the applicant or his family were ever at risk or chance of harm from the Taliban or other AGE on the basis of his father’s work, religion, his agnosticism/apostasy, or any imputed political opinion or profile that could have arisen from these factors. Therefore, the Authority did not accept that the applicant’s family had any reason to depart the district and travel to Pakistan to avoid harm. The Authority also did not accept the applicant’s revised claims that they travelled to Pakistan and returned to the district. 

15. The Authority was, however, prepared to accept the applicant was a Hazara Shia from a particular district. 

16. The Authority referred to country information in relation to travelling on the roads to the applicant’s home district and referred to indications that risks may potentially be increased by a person’s status as a returnee from the west or a perception that they are connected to the government or international community. 

17. The Authority referred to accepting that the applicant would be safe in his home district but was not satisfied that the same can be said for his movement within his home province and safely accessing his home area. 

18. The Authority was not satisfied on the prevailing country information that the applicant could safely access his home area. The Authority found that if the applicant were to return to and live in his home area, the chance that the applicant would be harmed, for reasons of his religion and ethnicity, to be more than remote and that the risk may be exacerbated by his time in the west. The Authority therefore accepted that there was a real chance of the applicant being seriously harmed in his home area for reasons of his religion, ethnicity, and other profile. 

19. The Authority correctly identified, pursuant to s 5J(1)(c) of the Act, that the real chance of persecution must relate to all areas of the receiving country.

20. The Authority proceeded to consider the applicant’s claims in the context of the applicant being able to relocate to a place like Kabul. The Authority referred to Kabul having a higher level of government control and a greater level of security than other parts of Afghanistan. 

21. The Authority referred to other country information. The Authority was satisfied that the applicant has no profile of the kind likely to attract a greater risk, nor any proximity to any person or group with such a profile, and that there is no reason to conclude that he would have such a proximity on his return to his home country.

22. The Authority found that there is only a remote risk and therefore not a real chance of the applicant being seriously harmed on the basis of his religion and/or ethnicity, or for any other reason by Islamic State. 

23. The Authority was not satisfied that AGEs, including the Taliban, are seeking to target Hazara Shias for reasons of their ethnicity or religion within Kabul.

24. The Authority found that there is not a real chance of the applicant being seriously harmed in Kabul for reason of his ethnicity or religion by the Islamic State or any other AGEs in this area. 

25. The Authority was not satisfied that the real chance of persecution relates to all areas of Afghanistan and found that the requirements of ss 5J(1)(a) and (c) of the Act were not satisfied. The Authority found that the applicant does not have a well-founded fear of persecution on these bases. 

26. The Authority was satisfied that the chance of harm is confined to the applicant’s home area. The Authority also found that there is not a real chance of the applicant being seriously harmed on the basis of his ethnicity, his or his father’s religion, whether Shia, Christian or agnostic, any actual or imputed political opinion as a returnee from the west, or a person who sought asylum in Australia or on the basis of any other actual or imputed profile arising from these factors in all areas of the receiving country.

27. The Authority found that the applicant did not meet the definition of ‘refugee’ under s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

28. The Authority found that the chance of the applicant being harmed, in generalised violence within Kabul, is remote and was satisfied that there is not a real risk of him facing significant harm on this basis. 

29. In the context of complementary protection, the Authority referred to the applicant’s submissions of significant barriers to finding work and accommodation and access to services if he were to relocate to a city such as Kabul and referred to the detailed submissions in that regard. 

30. The Authority accepted that there were pressures on returnees, and that included returning to Kabul, because the cities were relatively secure. The Authority also referred to it not being in dispute that these factors are putting upward pressure on living costs, employment opportunities, and access to services and accommodation. The Authority referred to taking into account these matters, and correctly identified that the relocation must be considered in light of the applicant’s individual circumstances and whether it would be reasonable for the applicant to relocate within the country to avoid significant harm. 

31. The Authority referred to country information in relation to men of working age being more likely to be able to return and integrate successfully. The authority referred to the other country information and noted that the applicant is an able-bodied man of working age and there is no obvious vulnerabilities, and referred to the fact that he would be relocating to Kabul either on his own or later with his wife as a couple. The Authority was satisfied that the applicant’s status would allow him to overcome the absence of traditional family or tribal networks. 

32. The Authority referred to returnees and their vulnerability in socioeconomic terms, and was not satisfied that these factors preclude the applicant successfully relocating to Kabul. 

33. The Authority did not accept the submissions that the applicant falls within the same disadvantaged position as internally displaced persons (“IDPs”) or urban poor. The Authority was satisfied that the applicant has a number of significant advantages over many IDPs and urban poor seeking to move to cities.

34. The Authority in that regard referred to the applicant’s education, completing school until year 8, and that he speaks, reads and writes Hazaragi, Dari/Farsi and has some abilities in English. The Authority also referred to the applicant’s family owning a farm in a particular location, and that the applicant had assisted on the farm and had apprenticed as a mechanic and had worked in both Afghanistan and the United Arab Emirates. The Authority referred to the applicant having worked as a driver and a courier, and that his work experiences demonstrated not only that he has a strong work experience and skills, but that he has the ability to relocate to an area and find work. The Authority referred to the applicant in that regard having to find not only employment but to make social connections, and find accommodation and access to services, and that this indicates the applicant is hardworking, resourceful and resilient, and has the skills to relocate.

35. The Authority also noted that the applicant has been to Kabul several times and has successfully navigated between Kabul and his home village, supporting the applicant having some familiarity with the city.

36. The Authority referred to the applicant’s work experience, skillset, languages, language skills and personal characteristics in terms of his resourcefulness and resilience, and his past experiences in Kabul placing him in a favourable position to return to Afghanistan.

37. The Authority was satisfied the applicant will be able to find work and accommodation in the city and overcome any lack of family or tribal support. The authority found these are significant factors which suggest it would be reasonable for the applicant to relocate within Afghanistan.

38. The Authority referred to the applicant’s contention that the Delegate erred in finding that the applicant’s wife can accompany him at his discretion. The Authority referred to the current risks involved on the roads and accepted the applicant’s submissions in that regard. 

39. The Authority accepted that the applicant has already spent several years away from his wife while in Australia, and it appears she has been able to remain in relative safety in the home region. The Authority also noted that the applicant has other family in his home region. 

40. The Authority observed that, if the applicant’s wife was unable to safely travel to Kabul to reunite with the applicant due to the security situation, the continued separation of him and his wife would be difficult. The Authority was confident that during such a period, the applicant could establish himself in Kabul and he would be able to bring his wife there in due course when they are able to do so safely.

41. The Authority accepted that the security situation on the roads may prevent her traveling on the road at this stage, but the Authority was not satisfied that this would be indefinite. The Authority referred to the security situation in relation to the roads changing frequently and there being steps to improve security on the roads. The Authority was satisfied that such a separation would be temporary, and that it would not make it unreasonable for the applicant to relocate.

42. The Authority referred to the risks in the home region and was satisfied it would be reasonable for the applicant to stay in Kabul during this time, and that while he may be unable to return to his home region, the Authority was satisfied that the applicant nevertheless has a family network of support outside of Kabul. 

43. The Authority considered the applicant’s strengths and advantages while endeavouring to earn a livelihood and establish himself within Kabul, which would provide him with access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life and later those of his wife.

44. The Authority was satisfied that it would be reasonable in all those circumstances for the applicant to relocate to Kabul, where there would not be a real risk that he would suffer significant harm. 

45. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to his receiving country from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

The Grounds

1. The three grounds in the second amended application are as follows: 

   1.The Immigration Assessment Authority (IAA) made a jurisdictional error in considering whether it was reasonable for the applicant to relocate within Afghanistan to avoid significant harm.

   Particulars

   i)   The IAA agreed with the applicant’s contention that the delegate erred in finding that the applicant’s wife can accompany him in Kabul at the applicant’s discretion (CB 275 at [68]).

   ii)     The IAA also found that security on the roads may prevent the applicant’s wife from travelling on the roads “at this stage”, however the IAA was not satisfied that this would be “indefinite” (CB 276 at [68]).

   iii)  The IAA stated that: “The security situation in relation to the roads changes frequently, and there is some evidence that the army and police forces continue to seek to improve security on the roads.” (CB 276 at [68])

   iv)   The IAA concluded that a separation between the applicant and his wife would be “temporary”, and it would not make it unreasonable for the applicant to relocate to Kabul. (CB 276 at [69])

   v)   The country information cited by the IAA at footnote 34 (CB 276) to support its conclusion that the separation between the applicant and his wife would be “temporary” ([69]), namely:

   DFAT Thematic Report – Hazaras in Afghanistan, 8 February 2016;

   EASO COI Afghanistan Security Situation 2016, 20 January 2016; and

   UNAMA Protection of Civilians Annual Report 2015, 14 February 2016

   contained no evidence that security on the roads was improving such that the applicant’s wife would be able to travel to Kabul to be reunited with the applicant at the time of the IAA’s decision or in the reasonably foreseeable future.

   vi)   The IAA therefore made a jurisdictional error in finding that it was reasonable for the applicant to relocate to Kabul based on a conclusion that the separation between the applicant and his wife would be temporary.

   2.The IAA made a jurisdictional error by failing to consider, in respect of its findings concerning the possibility of the applicant’s wife moving from her home to be reunited with the applicant in Kabul, whether it was reasonable for the applicant to relocate to Kabul in the reasonably foreseeable future.

a)The IAA was not satisfied that the security situation on the roads preventing the applicant’s wife from travelling on the roads would be “indefinite” (CB 275-276 at [68]).

b)The IAA was also satisfied that a separation between the applicant and his wife would be “temporary”. (CB 276 at [69]).

c)The IAA made no finding on whether the applicant’s wife would be able to travel safely to Kabul in the reasonably foreseeable future as a component of its finding as to whether it was reasonable for the applicant to relocate there, as it was required to do having regard to relevant country information.

5. The IAA made a jurisdictional error by failing to engage in a detailed consideration of the applicant’s circumstances so as to consider whether a relocation to Kabul was reasonably practicable for him as an urban internally displaced person (IDP).

Particulars

a)The applicant put before the IAA a range of objections to relocating to Kabul as an ‘urban IDP’ in three written submissions by his migration agent Estrin Saul to the IAA dated 22 August 2016 (CB 141-165); 9 November 2016 (CB 242-246); and 2 February 2017 (CB 249-253).

b)The objections included that the applicant would be likely to find himself in a situation comparable to other urban IDPs, “who are more vulnerable than the non-displaced poor as they are particularly affected by lack of access to social services and livelihood opportunities, with negative repercussions on food security and social protection mechanisms.” Further, “The lack of adequate land in urban areas and a lack of affordable housing often forces new and protracted IDPs to reside in informal settlements without an adequate standard of living and limited access to water and sanitation.” (CB 245 at [15]-[16]; see also CB 161-162 at [55]-[62])

c)In addition, the objections included that “even the most resourceful of persons face a real risk of long-term unemployment affecting their capacity to subsist. The Applicant’s inability to secure employment is exacerbated by his lack of meaningful support networks, familial or ethnic, to call upon in Kabul.” (CB 244 at [11])

d)The IAA did not engage in a detailed consideration of the applicant’s circumstances so as to consider whether a relocation to Kabul was reasonably practicable for him as an urban internally displaced person.

1. The Court notes that Mr Aleksov, counsel for the applicant, has confirmed that grounds 3, 4 and 6 are abandoned. 

Grounds 1 and 2

1. In relation to grounds 1 and 2, Mr Aleksov submitted that the Authority had engaged in a misapplication of the correct test in relation to complementary protection in light of the Authority’s reasoning concerning the applicant’s wife. 

2. Mr Aleksov, in that regard, focused specifically on the Authority’s observations about the safety in terms of roads, and that the security situation prevented the wife from traveling on the roads at this stage but was not satisfied this would be indefinite.

3. Mr Aleksov also referred to the Authority’s reasoning in para 69 that it was satisfied that the separation would be temporary, and it would not make it unreasonable for him to relocate. Mr Aleksov argued that this meant that the Authority had failed to apply the correct test in relation to the reasonably foreseeable future, and that it was inconsistent to refer to the wife being separated from the applicant temporarily and that there was an illogicality between the reference to the Authority not being satisfied this would be indefinite and the reference to the separation being temporary.

4. Mr Aleksov submitted that the Authority failed to engage in making logical and probative findings based on probative material in relation to the reasonableness of the applicant to relocate given the separation from his wife. Mr Aleksov argued that implicit in the Authority’s conclusions about the risk of harm on the roads is that the Authority found that that harm persists in the reasonably foreseeable future. It was argued that the Authority would otherwise not have assessed conditions in Kabul relevant to the applicant’s relocation and would have assessed these conditions on a temporary basis. 

5. Mr Aleksov argued that the Authority’s conclusions supported the finding that a security situation on the roads was not going to improve in the reasonably foreseeable future, sand therefore in the reasonably foreseeable future the Authority failed to act on that probative evidence as to how the wife might travel safely on the roads to be reunited with her husband. 

6. It was submitted that the Authority had engaged in guesswork and that the Authority had failed to correctly apply the legislative provisions in respect of whether it was reasonable for the applicant to relocate to Kabul in respect of complementary protection. 

7. The Authority’s reasons are not to be read with a keen eye for error. The Authority was clearly addressing the issue of reasonableness for the applicant to relocate in the circumstances of being separated from his wife and it identified that the separation had already occurred. The Authority’s reasons reflect a genuine consideration of the applicant’s claims and evidence in relation to the reasonableness of relocation.

8. There was no speculation involved in the Authority’s observations that the separation was not one that would be indefinite, nor was the observation by the Authority in relation to the separation being temporary, a reflection of any misapplication or misunderstanding of the legislative provisions. There was no inconsistency or illogicality in the adverse findings as to the reasonably foreseeable future. The reference to the separation and the taking of the same into account in respect of reasonableness for relocation for the applicant was a logical and rational matter and does not reflect any illogicality as advanced by the applicant.

9. The Authority was not determining whether the applicant’s wife met the statutory criteria in relation to complementary protection. Rather, the Authority was focused upon the reasonableness of relocation for the applicant in the applicant’s circumstances. 

10. No jurisdictional error, as alleged in grounds 1 and 2, is made out. 

Ground 5

1. In relation to ground 5 the written submissions on behalf of the applicant contend that there was a failure to engage in a detailed consideration of the applicant’s circumstances in respect of relocation to Kabul in the context of the applicant being an urban internally displaced person. The Authority’s reasons identify an active intellectual engagement and/or proper engagement with the applicant’s personal circumstances in considering whether or not relocation was reasonable as summarised above. 

2. Moreover, the Authority had earlier identified, in its reasons, the taking into account of the applicant’s submissions in relation to the reasonableness of relocation, and the findings of fact made in relation to the Refugee Convention were logical and rational matters that the Authority was entitled to take into account in determining whether or not it was reasonable for the applicant to relocate.

3. The Authority also referred to the submission about IDPs and expressly referred to being not satisfied that those facts precluded the possibility of the applicant successfully relocating and was satisfied that the applicant has a number of significant advantages over many IDPs. 

4. There is no failure to engage in a proper or meaningful consideration of the applicant’s circumstances in respect of the reasonableness of relocation. 

5. No jurisdictional error, as alleged in ground 5, is made out. 

6. As the second amended application fails to make out any jurisdictional error, the second amended application is dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 April 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 2 June 2020