BQJ16 v Minister for Immigration
[2018] FCCA 2331
•27 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQJ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2331 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the applicant’s fear of harm arising from an alleged blood feud and land dispute in Afghanistan – applicant fails to identify any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 36, 46A, 473CB |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 AVC16 v Minister for Immigration & Border Protection [2018] FCA 1238 AWA15 v Minister for Immigration [2018] FCA 604 Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 |
| Applicant: | BQJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1692 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 7 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Tully of Counsel |
| Solicitors for the Applicant: | Ryburn Solicitors |
| Counsel for the First Respondent: | Ms K. Hooper |
| Solicitors for the First Respondent: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to rely upon the Amended Application dated and filed on 25 August 2017.
The Amended Application filed on 25 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1692 of 2016
| BQJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Afghanistan of Shia Muslim faith and Hazara ethnicity aged 31 years, having been born on 31 December 1986.
By Amended Application filed in this Court on 25 August 2017 he seeks to quash and have redetermined a decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 2 June 2016 (Decision Record) under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 30 April 2016 refusing to grant to him a Temporary Protection (Subclass 785) visa (Protection visa).
Background
The Applicant arrived in Australia as an unauthorised maritime arrival via the United Arab Emirates and Indonesia on 14 August 2012. He and his family lived in Aghildeh Village, Kamarak in the Malistan District in Afghanistan and he was born and grew up in this village.
In July 2013 the Applicant lodged an application for a Protection (Subclass 866) visa which was rejected and returned to him as invalid. On 22 May 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making his application for the Protection visa on 18 September 2015.
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (AMA16) per Griffiths J at [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Claims for Protection
The Applicant’s claims were substantially made in answer to questions 90 – 93 and 95 in his Protection visa application, as follows:
[90]Why did you leave that country(s)?
I left Afghanistan because of a blood feud involving our neighbour who had made a claim on my uncle’s land. I fear harm on basis of belonging to a particular social group of people involved in blood feuds and people involved in land disputes in Afghanistan.
I fear that I will be killed to avenge the death of a person who had land disputes with my uncle. I fear this because the family of the deceased person will seek revenge on the assumption that I killed him. My troubles began approximately in April of 2012.
My cousin, Turab and I were working on the land which belonged to my uncle. My uncle’s neighbour approached us to complain about the land belonging to my uncle.
[91]What do you think will happen to you if you return to that country(s)?
I believe if I return to Afghanistan I would face a real chance of being killed as revenge for the killing of the person. I am sure that I will be killed if I return to Afghanistan. I am sure because they are after me to find and kill me. Revenge killing is common in Afghanistan. This is because there is no law in Afghanistan and the law is executed by the people. Those who have money have better chance to seek justice in the form of revenge.
I believe that I will be killed if I return to Afghanistan, because of the dispute over the land.
[92]Did you experience harm in that country(s)?
When the argument between my cousin and the person who came on land turned into scuffle, my cousin who was working with a spade used the spade to hit the person on the head. I tried to grab the spade from my cousin in order not to hit again. The victim’s brother and cousin thought that I hit that person, because of this the victim’s brother and cousin were attacked at me and beat me severely to the extent that I was bleeding from head then I did not remember what happened because I was unconscious.
[93]Did you seek help within the country(s) after the harm?
When I was hospitalized my uncle came and send me immediately sent me in Kabul to my maternal uncle’s home because I was not safe there. A week later I heard that the victim passed away from his injuries. I feared for my life because they were seeking revenge. Then my maternal uncle made arrangements for me to leave Afghanistan.
[95] Do you think you will be harmed or mistreated if you return to that country(s)?
I believe if I return to Afghanistan I will be killed by the family of the deceased person.
I am sure that I would have been found and killed eventually, if I remain in Afghanistan. I fear that if I return I will be killed, because the family assumes that I have killed the person and are seeking revenge for his death.
The Applicant’s claims had been similarly made in his Statutory Declaration declared on 19 July 2013, which had been part of his earlier invalid Protection (Subclass 866) visa application. He there declared that revenge killing was common in Afghanistan and he would face a real chance of being a victim of such a revenge killing by the family of the deceased victim referred to above if he returned to Afghanistan.
The Applicant’s fullest version of the incident and killing in April 2012 was given in his Statutory Declaration of 23 May 2016, submitted to the IAA (see [18] below), in the following terms:
[9]On a day in or about April 2012 which is spring time in Afghanistan I had recently returned from 5 years working in Iran and I went to work helping on my uncle’s land in Aghildeh Village with my Cousin Soorub and Uncle Ishaq.
[10] We were preparing the ground for planting as it was spring time. This is a labour intensive job done with men using spades.
[11]There were other people visible outside in the Village area. Some were working, others were going about their business.
[12] one of the Villagers and his adult son walked out of their residence and came towards us. This man lived not far from my uncle. His land plot adjoined my uncle’s land plot. This man’s name is Hussain and his son is named Ishaq (the same name as my paternal uncle). This Ishaq was around 25 years of age. I will refer to him as Hussain’s son to avoid confusion.
[13]Soorab stopped working to talk to these two but he but he didn’t put down his spade because he thought it would be a fairly short conversation and then he would continue with his labour.
[14]Initially My Uncle and I continued with our work.
[15]Hussain & his son started a discussion about the land boundary line between the two land plots. At first the conversation was not in raised voices or rude. Hussain’s son said to Soorab words to the effect:
“You are encroaching on our land”
[16]Meanwhile Hussain himself started confronting my Uncle. This conversation was taking place not far from me. Because, the topic was my uncle’s land, it was not my place to join in and so I continued to hang back a little and keep working. It was impossible not to hear both conversations. The conversation between Hussain and my Uncle was also a heated discussion about the land boundary.
[17]Both Hussain and my Uncle and Hussain’s son and my cousin were engaged in separate conversations or arguments. They were each engrossed in their own conversations.
[18]Then suddenly, I heard Hussain’s son abused Soorab and said words to the effect:
“You bastard”
And other insulting words against Soorab’s mother.
This immediately escalated that discussion from civilised argument to intense argument.
[19]All of a sudden, I heard Hussain’s son cry out in pain. Soorab had hit Hussain’s son over the head with his spade.
[20]When I looked up from my spade, where my eyes were focussed on tilling the soil, I saw Hussain’s son collapsed on the ground. His collapse to the ground happened instantly upon the strike to his head in a fraction of a second.
[21]I rushed in to restrain Soorab and to prevent further violence. I snatched Soorab’s spade from him.
(the April 2012 incident)
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 10 February 2016. The Applicant amplified his evidence concerning the April 2012 incident and at the end of the interview added the claim that Hazaras were killed by the Taliban and Daesh in Afghanistan.
In the result the Delegate substantially accepted the truthfulness of the April 2012 incident, but was not satisfied that “people involved in blood feuds” and “people involved in land disputes” in Afghanistan shared any characteristics common of a group, and that the essential and significant reason for the motivation of the harm alleged by the Applicant was personal revenge, rather than membership of a particular social group and thus found that the Applicant’s claims in connection with the April 2012 incident were not Refugees Convention related.
However, the Delegate accepted for the purposes of the Refugees Convention criterion that as a Shia Hazara from the Malistan District of Afghanistan the Applicant would face a real chance of serious harm in that location for reason of his race and religion.
Nevertheless, the Delegate considered that the real chance of persecution did not relate to all areas of Afghanistan and there was not a real chance of persecution in Kabul, to where the Applicant could reasonably relocate.
The Delegate likewise found that for the purposes of the complementary protection criterion under s.36(2)(aa) of the Act the Applicant could reasonably relocate to Kabul and the Delegate refused to grant the Protection visa to the Applicant.
Decision of IAA
On 3 May 2016 the Minister referred to the IAA the Delegate’s refusal to grant a Protection visa to the Applicant.
The Applicant’s legal representative provided submissions dated 24 May 2016 to the IAA entitled ‘Reasons for Disagreement with the Decision of the Department’, which included a Statutory Declaration of the Applicant declared on 23 May 2016 which gave evidence in reply to the decision of the Delegate. At [4] and [8] of its Decision Record the IAA noted receipt of this material and that it had considered it, though it noted at [5] that new details relating to the April 2012 incident were not considered where exceptional circumstances were not present to justify such consideration. The IAA also recorded in [5] that it had listened to the whole of the interview between the Applicant and the Delegate.
At [9] of its Decision Record the IAA summarized the Applicant’s claims of fear of being harmed as made in his Protection visa application and before the Delegate.
At [11] – [24] the IAA set out its factual findings in relation to the claims made by the Applicant, and at [25] – [45] it recorded its consideration of the Applicant’s claims with respect to its assessment of the refugee status of the Applicant under the headings of:
a)2012 dispute and subsequent blood feud;
b)Hazara ethnicity and Shia faith; and
c)Harm feared in Kabul.
At [37] the IAA found that confined to the road between Kabul and the Hazarajat the Applicant faced a real chance of persecution on account of his Hazara ethnicity and Shia Muslim religion but at [43] – [45] that he could relocate to Kabul.
The IAA accordingly concluded at [46] that the Applicant did not meet the requirement of the definition of refugee in s.5H(1) of the Act and so did not meet s.36(2)(a).
The IAA then at [47] – [54] of its Decision Record, in relation to the complementary protection criterion:
a)found that the Applicant did not face a real chance of any harm as a result of the April 2012 incident: [49] of the Decision Record;
b)accepted that the Applicant faced a real risk of significant harm if he were to travel on the road between Kabul and the Hazarajat: [50] of the Decision Record; and
c)found that the Applicant did not face a real chance of suffering harm upon returning to Kabul because of the April 2012 incident or because of his Hazara ethnicity or Shia Muslim religion and it was reasonable for him to relocate to Kabul where he would not face a real chance of suffering harm: [52] of the Decision Record.
In short, in relation to the April 2012 incident the IAA:
a)was willing to accept that the April 2012 incident occurred;
b)nevertheless did not accept that the Applicant was believed to have killed the neighbour’s son, and that the neighbour’s family was not seeking revenge against the Applicant or threatening the Applicant’s family;
c)did not accept that the neighbour’s family members beat the Applicant unconscious during the April 2012 incident;
d)considered independent country information in relation to blood feuds and associated revenge in Afghanistan; and
e)accepted the Applicant’s explanation that despite threats having been made, his uncle and cousin still live in Kamarak and have not suffered harm from the neighbour or the neighbour’s family.
Accordingly, the IAA affirmed the Delegate’s decision not to grant a Protection visa to the Applicant.
Ground of Attack on IAA Decision in this Court
The Grounds relied upon by the Applicant in his Amended Application were as follows:
The decision of the Immigration Assessment Authority (the Authority) is affected by jurisdictional error because:
1. The Authority failed to deal with claims clearly articulated by the Applicant.
Ground 1A
Particulars for Ground 1A
a. The Applicant consistently claimed to fear persecution in Afghanistan as a member of two particular social groups, being "people involved in blood feuds" and "people involved in land disputes".
b. At [24] and [27] of its decision, the Authority accepted that an incident occurred as claimed but did not accept that the Applicant was believed to have killed his neighbour, that the neighbour's family was seeking revenge against the Applicant or was threatening his family for the victim's death.
c. The Authority failed to consider whether the Applicant had a well-founded fear of persecution as a member of a particular social group, being "people involved in land disputes", arising from a dispute about a land boundary between the Applicant's uncle and a neighbour.
Ground 1B
Particulars for Ground 1B
a. The Applicant claimed to fear persecution from the Islamic State or Daesh.
b.The Authority made no reference to relevant country information about that group's activities.
c. The Authority failed to consider the risk of harm to the Applicant from the Islamic State or Daesh if he was returned to Kabul.
2.At [22] of its decision, the Authority failed to consider country information which, properly considered, corroborated the Applicant's claims.
Particulars
a. The Authority did not consider it plausible that the Applicant was believed to have killed a neighbour resulting in the victim's family seeking revenge against him.
b. The Authority did not accept the Applicant's explanation that, notwithstanding threats being made, his family had not been harmed because the victim's family may fear retaliation.
c. The Authority purported to consider country information that the victim's family could expect retaliation from the Applicant's family.
d. The Applicant's explanation as to why his family had not been harmed was supported by the country information which, when properly considered, suggested that the victim’s family could fear retaliation from the Applicant's family.
e. The Authority's conclusion about implausibility at [22] of its decision lacked a rational or evidentiary basis.
3.The Authority failed to· consider information relevant to [23] of its decision.
Particulars
a. At [23] of its decision, the Authority stated that there was no plausible explanation as to why the Applicant's family had not sought to use the customary dispute resolution process.
b. During his protection visa interview, the Applicant had:
i. twice identified the difficulty of finding witnesses to the claimed incident (which was accepted by the Authority to have occurred), and
ii. stated that, because there was no rule of law in Afghanistan, individuals pursued their own justice.
c. The Applicant had provided information at his protection visa interview which was relevant to the Authority's decision but not considered.
Consideration
Ground 1A
This Ground asserts that the IAA failed to deal with an articulated claim of the Applicant to fear persecution in Afghanistan because of his membership of the particular social group being “people involved in land disputes”.
It is of course a well-established principle that an administrative decision-maker such as the IAA is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.
In my view, for the reasons that follow, this Ground fails to establish jurisdictional error.
The first thing to be said is that I do not accept that the Applicant ever made an independent, freestanding claim based on the particular social group of “people involved in land disputes”. The Applicant did not make any such claim separate and apart from the April 2012 incident. He did not claim to have been himself a landowner in Afghanistan, or that he would be an owner of land in Afghanistan if he returned there.
Rather, the substance of his claim was that he feared harm from a blood feud involving his uncle’s neighbour and the neighbour’s family which arose out of the dispute concerning the land boundary between the uncle’s land plot and the neighbour’s land plot which occurred in April 2012.
This claim was properly recognised and summarised by the IAA at [9] of its Decision Record as follows:
[9]• He left Afghanistan because of a blood feud involving his neighbour who made a claim on his uncle’s land.
•He fears harm on the basis of belonging to a particular social group of “people involved in blood feuds” and “people involved in land disputes” in Afghanistan. He fears that he will be killed to avenge the death of a person who had a land dispute with his uncle. The family of the deceased man will seek revenge on the assumption that the applicant killed him.
Second, the IAA accepted at [24] of its Decision Record that the April 2012 incident did in fact occur, but having had regard to at least the following:
a)independent country information in relation to:
i)blood feuds;
ii)revenge killings;
iii)customary dispute resolution mechanisms outside the formal justice system; and
b)its acceptance of the Applicant’s evidence that his uncle and his cousin Soorab (who he had claimed had killed the neighbour’s son with the spade) as well as the Applicant’s own mother, two brothers and his sister, still lived in Kamarak and had not suffered harm;
it came to the view, which it expressed at [22] and [27] of its Decision Record, that it was not plausible that the Applicant was believed to have killed the neighbour’s son or that the neighbour’s family was seeking revenge against him.
In other words, in effect the IAA accepted that the April 2012 incident occurred insofar as it comprised a dispute over a land boundary and the killing of the neighbour’s son, but found no adverse consequence flowed against the Applicant and that he would not suffer persecution in his home district of Malistan because of anything related to the April 2012 incident. Its factual finding in this regard meant that it did not have to specifically make any further finding or reference in its Decision Record to “people involved in land disputes in Afghanistan”.
Third, it is also apt to remember that the decision of an administrative decision-maker such as the IAA must be read fairly and as a whole, without a fine-tooth comb seeking to identify error. Further, an inference that such a body has failed to consider an issue is not always to be drawn from its failure to expressly deal with that issue in its Decision Record. As the Full Court of the Federal Court of Australia comprised of French J (as his Honour then was), Sackville and Hely JJ stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 – 605 [46] – [47]:
[46]…The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
Similarly, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the plurality comprised of Brennan CJ, Toohey, McHugh and Gummow JJ stated as follows:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
(citation omitted)
In my view Ground 1A fails to establish jurisdictional error.
Ground 1B
This Ground also fails to establish that the decision of the IAA is affected by jurisdictional error, for the following reasons.
It is clear law that the choice and selection of country information and the weight given to such information is a factual matter for the relevant administrative decision-maker and is not an issue for review in this Court: see SZLYT v Minister for Immigration and Citizenship [2009] FCA 76 at [20] per Collier J and WZAVX v Minister for Immigration and Border Protection [2016] FCA 411 at [32] per Siopis J.
To similar effect in MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at 159 [19] the Full Court of the Federal Court of Australia comprised of Tracey, Murphy and Mortimer JJ approved the statement of law of the primary Judge below, as follows:
[19]It also noted (at [21]) it was a matter for the Tribunal what country information it obtained and what weight it gave that country information, referring to the reasons of the Full Court of this Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
First, the IAA was fully alive to the Applicant’s claim to fear harm on his return to Afghanistan on account of his ethnicity and his religion. It set out his claims in [9] of its Decision Record as including:
[9]• He believes he would also suffer persecution due to his Hazara ethnicity and Shia Muslim religion.
Then at [28], under the subject heading of “Hazara ethnicity and Shia faith”, the IAA stated as follows:
[28]Towards the end of the TPV interview, the applicant was asked if there was any other reason why he felt he could not return to Afghanistan. The applicant said “no” but went on to say that “there is the Taliban and Daesh who are threatening my people because of our ethnicity and religious belief. It’s very difficult there and these are the dangers that people there face and I face myself”. I have therefore considered whether the applicant has a well-founded fear of persecution by the Taliban or Daesh due to his Hazara ethnicity and Shia Muslim faith.
(emphasis added)
From [29] – [37] of its Decision Record the IAA recorded its consideration of independent country information in relation to the oppression of Hazaras and oppression on the basis of religion. In [30] it recorded that a DFAT report had stated that in Afghanistan “no particular group is systematically targeted solely on the basis of their ethnicity and / or religion” from “anti-government elements”.
At [32] of its Decision Record the IAA found that the Applicant had not suffered persecution by reason of his Hazara ethnicity or Shia Muslim religion in Afghanistan in the past and, on the basis of country information, that no particular group in Afghanistan was systematically targeted solely on the basis of its ethnicity and / or religion.
At [33] the IAA recorded that the DFAT report acknowledged “that there has been an increase in kidnappings and attacks against Hazaras on the road between Kabul and the Hazarajat recently and that the security situation for Hazaras remains fluid. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common”.
Ultimately, the IAA accepted on the basis of country information that the Applicant would not face a real chance of persecution in his home village of Malistan on the basis of his ethnicity or religion, but that in order to return to his home area he would be required to travel on the road between Kabul and the Hazarajat, which DFAT had recognised as dangerous for Hazaras. Accordingly, the IAA expressed its satisfaction that the Applicant faced a real chance of persecution now or in the reasonably foreseeable future on his return to Afghanistan on account of his Hazara ethnicity and Shia Muslim religion. Nevertheless, the IAA went on to find that the Applicant could reasonably relocate to Kabul where he would not be at risk of harm on the basis of his Hazara ethnicity and Shia Muslim religion.
In my view, the IAA properly considered the Applicant’s claim to fear harm on account of his ethnicity and religion from the Taliban and Daesh, but considered those claims in the context of whether or not generally any body or party in Afghanistan would seek to harm him for those reasons, and in particular by reference to “anti-government elements” which description was apt to include the Taliban and Daesh / Islamic State. In [33] of its Decision Record the IAA specifically considerd and referred to violence committed by “the Taliban, other anti-government groups and criminal elements” and “armed insurgents”.
Accordingly, this Ground fails to establish jurisdictional error.
Ground 2
At the hearing Mr Tully of Counsel, who appeared for the Applicant, focussed and confined his argument to Ground 2(e) in submitting that the findings of the IAA expressed in [22] of its Decision Record lacked a rational or evidentiary basis.
I note at this point that illogicality or irrationality in a legal sense is not limited merely to the end result of the decision of the relevant administrative decision-maker, being the conclusion about the state of satisfaction required by the prescribed criteria of the visa in question, but may also be found in relation to “processes of reasoning” and findings on the way leading to the end result.
Nevertheless, illogicality or irrationality can only be established if the end result, or the impugned finding along the way to that end result, is one at which no logical or rational decision-maker could arrive: see SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 at [60] – [62] per Wigney J.
Paragraph [22] of the Decision Record of the IAA stated as follows:
[22]After considering the applicant’s evidence and the country information regarding blood feuds, I do not accept the applicant’s explanation that, despite threats having been made, his family has not been harmed because the victim’s family may fear retaliation. Country information suggests that the victim’s family could expect retaliation from the applicant’s family whether they harmed another male in the applicant’s family or the applicant himself. I do not consider it plausible that the applicant is believed to have killed the neighbour, resulting in the victim’s family seeking revenge against him.
I do not regard the reasoning in [22] of the Decision Record as “capricious” or “irrational” or “lacking an evident or intelligible justification”.
It was a fundamental part of the Applicant’s claims that he feared that he would be the victim of a blood feud and killed in revenge if he returned to Afghanistan because such revenge killings were common there, and Afghan laws are carried out by tribes and tribal laws are mostly based on revenge.
The IAA substantially agreed that revengeful and retaliatory violence regularly occurred in Afghanistan and from [16] – [23] of its Decision Record considered independent country information in relation to blood feuds and retaliatory violence between parties in Afghanistan. At [16] it stated as follows:
[16]In Afghan tradition, blood feuds are conflicts between opposing families, tribes and armed factions. They are often initiated in reaction to perceived violations to the honour of women, property rights and land or water issues (UNHCR, “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan", 1 July 2009, p.39). Blood feuds in Afghanistan can be long-running conflicts, with a cycle of retaliatory violence between parties. This violence often targets individuals by association with the family or tribe of the person seen as wrongdoer. In such situations, the victim’s tribe or family members seek revenge by killing, physically injuring or publicly shaming the perpetrator or persons related by family or tribe (ibid).
At [20] – [21] of its Decision Record the IAA stated as follows:
[20]If revenge cannot be carried out, the victim’s family will often leave the village to avoid the public shame of having to live in proximity to the killers…
[21]Country information cited above indicates that violence related to blood feuds often targets individuals by association with the family of the person seen as the wrongdoer and that in such situations, the victim’s family members seek revenge by killing, physically injuring or publicly shaming the perpetrator or persons related by family or tribe…
Further, at [15] and [18] of its Decision Record the IAA considered country information which recorded that the majority of disputes in Afghanistan were resolved by customary dispute mechanisms outside the formal justice system.
It is in this context that [22] is to be viewed. It was the Applicant’s evidence that his uncle, his cousin Soorab, his own mother, his two brothers and his sister still lived in Kamarak and had not suffered harm in the four years after the April 2012 incident. The Applicant sought to maintain consistency in his claim to fear harm if he returned to Afghanistan by asserting that perhaps the neighbour and his family had not done anything to the Applicant’s uncle and family in Afghanistan because the neighbour and the neighbour’s family feared the Applicant’s family would retaliate.
In these circumstances, the IAA at [22] is simply recording its finding that it did not accept the Applicant’s explanation as to why his family had not been harmed by the neighbour, by relying on country information which suggested that the possibility that the Applicant’s family would retaliate would not have dissuaded the neighbour or the neighbour’s family from attacking or seeking revenge upon the Applicant’s family in Kamarak. In other words, the IAA was effectively opining that in circumstances where the Applicant did not suggest that for over a period of four years any of his family back in Afghanistan had suffered from any attempted retaliation or revenge, the customary dispute resolution mechanisms had not been utilised (see also [23] of the Decision Record), and in light of the IAA’s finding at [24] that the Applicant was not believed to have killed the neighbour’s son, that it was not plausible that the neighbour’s family was seeking revenge against the Applicant himself or threatening the Applicant’s family. I do not consider that there is anything irrational or illogical in reasoning in this way.
Accordingly, Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground alleges that the IAA failed to consider relevant oral evidence given by the Applicant at his interview with the Delegate which explained why there was a plausible explanation for the Applicant’s family not invoking customary dispute resolution processes outside the formal justice system to resolve the alleged blood feud with the neighbour’s family. At [23] the IAA had noted that the Applicant’s family had not attempted to resolve the blood feud through the use of customary law and found that there was no plausible explanation for why the customary dispute resolution process had not been invoked by the Applicant’s family.
In my view, the IAA did not overlook or fail to consider the Applicant’s explanation to the effect that his family back in Afghanistan had not sought to use the customary dispute resolution process because it was difficult to find witnesses or have witnesses come forward.
First, the Delegate in his Decision Record at page 6 had noted that he had put to the Applicant at the interview that available country information indicated that most conflicts in the Hazarajat were dealt with by religious and customary laws by elders and religious authorities, and that it had been open to the Applicant to seek resolution by this process if he was not guilty of the murder of the neighbour’s son.
The Delegate recorded that the response of the Applicant was:
He responded that these elders were a problem in Afghanistan because they took a bribe and did not apply laws equally. He added that it would be difficult to find a witness as they fear for their life. The applicant further stated that there was no rule of law in Afghanistan and people pursued their own justice.
(emphasis added)
Further, at page 5 of his Decision Record the Delegate recorded that in relation to the April 2012 incident the Applicant had said that whilst someone may have seen that it was his cousin Soorab who hit the neighbour’s son, people in Afghanistan do not want to be “witnesses based on truth”.
The Decision Record of the Delegate would have been read by the IAA as it was part of the review material which had to be given to it for the purposes of its review pursuant to s.473CB(1)(a) of the Act and as noted at [5] and [11] of its Decision Record it had listened to the entire audio recording of the interview between the Applicant and the Delegate. At [3] the IAA noted that it had regard to the material referred to it under s.473CB of the Act
Then at [15] of its Decision Record the IAA expressly noted the discussion between the Applicant and the Delegate at their interview of why customary dispute resolution processes had not been utilised and recorded that the Applicant “acknowledged that there are incidents which are resolved through the traditional councils but it is always the “strong person who is right and the weak one is wrong”” and that “nobody would come forward as a witness, justice is not always served and the elders “are a problem in themselves””.
In the circumstances it was legally open to the IAA, after having noted at [22] that it had considered the Applicant’s evidence and country information regarding blood feuds, to find at [23] of its Decision Record that, based on country information indicating that the majority of disputes in Afghanistan are resolved by customary dispute resolution processes by persons respected in the community, to dismiss as implausible the Applicant’s explanation for why his family in Afghanistan had not sought to use the customary dispute resolution process. It is an over-zealously critical reading of the Decision Record of the IAA to proceed by seizing on its express reference at [23] to the Applicant’s explanation that elders are “a problem in themselves” but its not referring to his claim that “nobody would come forward as a witness”, as indicating that the IAA had overlooked, or did not properly consider, this part of his explanation.
Further, it is clear law that a decision-maker such as the IAA is not required to refer in its Decision Record to every contention or piece of evidence. Much depends upon the cogency of the evidentiary material and the place of that material in the assessment of the review applicant’s claims: see the discussion by Perry J in AVC16 v Minister for Immigration & Border Protection [2018] FCA 1238 at [28] – [30]. I do not consider that the Applicant’s explanation of the difficulty of having witnesses come forward was a particularly cogent explanation of his family’s failure to engage in the customary dispute resolution process, either in itself or as part of the mosaic of the Applicant’s claims. There does not appear on the Applicant’s claims to be any doubt that it was his uncle’s son who killed the neighbour’s son, and the Applicant never explained otherwise why the absence of witnesses to the April 2012 incident had any causal relationship with the failure to commence the customary dispute resolution process.
In my view Ground 3 also fails to establish that the decision of the IAA was affected by jurisdictional error.
Conclusion
The Applicant has failed in establishing any relevant jurisdictional error affecting the decision of the IAA, and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 27 August 2018
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