BQW17 v Minister for Immigration

[2018] FCCA 977

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQW17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 977

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Applicant: BQW17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 343 of 2017

Judgment of: Judge Vasta

Hearing date: 26 March 2018

Date of Last Submission: 26 March 2018

Delivered at: Brisbane

Delivered on: 26 March 2018

REPRESENTATION

The Applicant appearing on her own behalf

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application’s filed on 19 April 2017 and 11 December 2017 be dismissed.

2. That the Applicant pay costs to the First Respondent in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 343 of 2017

BQW17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant BQW17 claims to be a citizen of Afghanistan.  He has made an application to this Court to review the decision of the Immigration Assessment Authority (“the IAA”).  That decision was made on 16 March 2017 and it affirmed an earlier decision not to give BQW17 a protection visa. 

2. The claims of BQW17 are that he is a national of Afghanistan, a Shia Muslim and an ethnic Hazara.  He was born in the Anguri area of Jaghori district in Afghanistan’s Ghazni Province.  He claimed that, being a Shia Hazara growing up in Afghanistan, he lived in constant fear of the Taliban, who ruled the country through the 1990s. 

3. He said that the Taliban made it part of their agenda to rid Afghanistan of the Shia Hazaras.  After the invasion of Afghanistan in late 2001, Taliban activities became more covert but, nevertheless, he still lived in constant fear of attacks, especially in and around the Hazara-populated areas.

4. In 2005, he claimed that he was in Ghazni city getting supplies for his tractor when he was approached by his maternal uncle, an Uncle MAS, who said that he had been sent by the Applicant’s step-mother with news that the Applicant’s father had been killed.  He claimed that he was told by his uncle that there had been a land dispute between the Applicant’s father and the half-brothers of the Applicant’s father; that is, Uncle Q and Uncle H.  This dispute ended with the Applicant’s father being killed.

5. The Applicant said that his uncles were powerful and connected men.  Uncle Q was actively involved in Hizb-i-Wahdat, while Uncle H had befriended the Taliban for his own personal gain.  The Applicant claims that Uncle MAS told the Applicant that the half-brothers had framed the Applicant as the murderer and were accusing the Applicant of having a financial dispute with his father and that the uncles planned to kill the Applicant when he made his way back to Anguri.  Uncle MAS told the Applicant that he should flee.  The Applicant said that he entered Pakistan unlawfully and took up residence in Quetta, on Kay Road.

6. About six months later, Uncle MAS and his uncle-in-law brought his wife, his stepmother and his half-sisters to join him in Pakistan.  He said that, since then, he has never returned to Afghanistan for fear that Uncle Q and Uncle H will think that he has returned to claim the land of which he is the rightful owner.  The Applicant said that he fears that if he returns to Afghanistan, he will be killed by the two uncles or by the Taliban or by Hizb-i-Wahdat acting on their behalf.  He also fears that he will be killed, harmed or mistreated because he is a Hazara and a Shia. 

7. The IAA pointed out a number of inconsistencies with his citizenship.  The Applicant claimed that he had no identification papers when he arrived.  It turned out that the Applicant has a Queensland drivers’ licence.  Records show that he obtained the licence because he had presented his Afghani drivers licence.  That Afghani drivers licence was purportedly from Kabul and dated 2009, which is some four years after the date from which the Applicant said that he had never been back in Afghanistan.  He later claimed that this was because the drivers’ licence was somehow a forgery from Pakistan. 

8. The IAA looked thoroughly at the whole claims of the conflict with the uncles. 

9. It must be said that the delegate had come to a decision that the Applicant was not credible and did not have a fear of the uncles.  In assessing all of the claims, whilst there were quite some discrepancies, the IAA came to a conclusion that the religious or social contacts with the Taliban and the other political groups were not credible. 

10. However, the IAA accepted that the uncles had murdered his father and accepted that the uncles would seek to do harm to the Applicant if he returned to the Anguri district, notwithstanding that the IAA found that there was no active murder investigation in relation to the Applicant killing his father.

11. The IAA came to this conclusion: that they were willing to accept that there was a real risk to the Applicant, and I will quote from paragraph 23:

    “As is noted above, I am willing to accept that there is a real chance that his uncles would seek to harm the Applicant if he were to return to his home in Anguri where Uncle Q and Uncle H and the seized land are all located.  However, I am not persuaded that there is a real chance that the Applicant’s uncles would harm the Applicant if he did not return to Anguri and, instead, returned to Afghanistan and resided in Kabul.  I accept there is a real chance that the uncles might learn that the Applicant is in Kabul, even though the Applicant claims to have no relatives or associates in Kabul.”

12. That was a finding that differed from the delegate and it seems to have come from an examination of the TPV interview.  At paragraph 22, the IAA noted that it was put to the Applicant that Kabul may be a place where he could reside without facing the real chance of harm and, in response, the Applicant stated that Hazaras are targeted and killed by the Taliban everywhere in Afghanistan and that, if he returned to Afghanistan, his uncles would find him wherever he might go. 

13. The IAA thoroughly went through what would happen in Kabul and what the chances were of there being serious harm visited upon the Applicant if such a relocation, to Kabul, were to occur.

14. In the end, the IAA came to the conclusion that there would not be a “real chance of serious harm” occurring to the Applicant if he were to relocate to Kabul in Afghanistan.  The IAA went through a similar process when looking at the complimentary protection criteria. 

15. In all, the IAA neatly wrapped up their findings in paragraph 45, where they said:

    “Having regard to the Applicant’s overall circumstances and Kabul’s livelihood and security situation more broadly, including the overall situation regarding generalised violence in Kabul, I am satisfied that it would be reasonable for the Applicant to relocate to Kabul, an area of the country where there would not be a real risk that the Applicant will suffer significant harm.”

16. The grounds of this application are quite voluminous and I will have them reproduced for my written reasons. Ground One is  as follows:

    “1. The decision of the IAA, in finding that the applicant could reasonably relocate to Kabul, was affected by jurisdictional error in that:

    a. having found that the applicant had a specific reason to, and did, hold a well-founded fear of persecution in relation to his own home area, the IAA did not separately consider whether it was reasonable for him to relocate to Kabul, a city in which “insurgent and criminal violence” was “common”;

    b. the IAA did not consider what it had found to be a “remote” risk of the applicant’s uncles pursuing him in Kabul (particularly if he took steps to reclaim his land, which the IAA did not discount) and the applicant’s genuine subjective fear of that risk even in Kabul, when assessing whether it was reasonable to expect him to relocate to Kabul;

    c. the IAA did not consider what it had found to be actual discrimination against Hazaras in Kabul, though not amounting to significant harm, when considering whether it was reasonable to expect the applicant to relocate to Kabul; and/or

    d. the IAA, having not rejected the possibility of significant harm to the applicant in inner city areas or near the airport, did not consider whether the employment he could “reasonably expect to find” would or might require him to travel in those areas, and whether it was reasonable to expect him to run either the risk of harm in traveling to such areas for employment or the risk of failing to find employment in safer areas of Kabul, and in so doing, the IAA:

    e. conflated the question of significant harm with reasonableness of expecting the applicant to relocate to Kabul insofar as the abovementioned matters are concerned;

    f. failed to consider mandatory relevant considerations in relation to the reasonableness of the applicant’s relocating to Kabul; and/or

    g. failed to conduct the necessary individualised assessment of the situation which the applicant would face if required to relocate to Kabul.”

17. Firstly, the ground talks of the IAA not separately considering whether it was reasonable for the Applicant to relocate to Kabul, the city in which insurgent and criminal violence was common.  From my recitation of the facts and looking at the reasons given by the IAA, such was well and truly considered by the IAA.

18. The second aspect in the grounds is that the IAA did not consider what it had found to be a remote risk of the uncles pursuing him in Kabul and the Applicant’s genuine subjective fear of that risk in Kabul when assessing whether it was reasonable. 

19. That aspect was, on my reading of the reasons of the IAA, first and foremost in the mind of the IAA because it was fear of the uncles and what the uncles could do that caused the IAA to look at whether the Applicant could safely relocate to Kabul.

20. The IAA did consider that aspect and even found that there was a chance that someone could find the Applicant in Kabul and get a message somehow back to the Anguri area and tell the uncles that the Applicant was there. But, nevertheless, going through all of the facts and the reports and country information, the IAA still came to the conclusion that it did.  Therefore, it cannot be said that the IAA did not consider this aspect.

21. The third matter is an assertion that the IAA did not consider actual discrimination against Hazaras in Kabul.  It is quite obvious that such was considered and paragraph 45, the concluding paragraph, shows that it was considered.

22. The fourth matter is that the IAA did not consider the possibility of significant harm in the inner city areas or near the airport and didn’t consider whether the employment he could reasonably have expected to find would make him travel in those areas where he could be harmed. 

23. Again, it seems to me that when one looks at the reasons, such was certainly considered by the IAA. Paragraph 33 of the IAA expressly found the Applicant would, of course, be required to turn to Kabul via the international airport and use the roads which connect the airport to the city. As has been noted, these areas have had a number of attacks over recent years and, although the Applicant would be required to return by the airport and the roads which connect to the city, he would not be required to frequent the airport and its surrounds thereafter.

24. The finding, therefore, is that the Applicant could reasonably have expected to find employment in Kabul because they had found that he would not be required to frequent the airport and its surrounds.  The IAA found that there would not be a real risk of any significant harm in Kabul. 

25. This then answers the fifth, sixth and seventh aspects of ground one as well. 

26. Therefore, when one looks at all of the aspects of ground one, it must fail.

27. The second ground is as follows:

    “2. The decision of the IAA, in finding that the applicant could reasonably relocate to Kabul, was affected by jurisdictional error in that the IAA, knowing that it proposed to accept the applicant’s factual claims and find that he had a well-founded fear of persecution and faced a real risk of significant harm if he was to return to Angori, in circumstances where the delegate had given no consideration to the issue of the reasonableness of relocating to Kabul and the applicant was not on notice that the issue of the reasonableness of relocation to Kabul (as opposed to whether he would face persecution in Kabul) was relevant or likely to be dispositive:

    a. failed to appreciate that the course of decision-making it was taking was unfair to the applicant and that it had options available to it to prevent or alleviate that unfairness because he had not had the opportunity, before either the delegate or the IAA, to be heard on the key issue of the reasonableness of relocation to Kabul;

    b. failed to turn its mind to the exercise of its discretion under s 473DC(3) to invite the applicant to give new information to the IAA (or to attend an interview) in relation to the reasonableness of relocating to Kabul or, in the alternative, exercised that discretion in a manner that was legally unreasonable in the circumstances;

    c. failed to consider setting aside the decision of the delegate and remitting the matter for the delegate to determine (with or without a direction that the applicant had a well-founded fear of persecution and faced a real risk of significant harm in relation to Angori) or, in the alternative, exercised that discretion in a manner that was legally unreasonable in the circumstances; and

    d. failed to conduct a review as required by s 473CC(1) of the Migration Act, the object of which was for the IAA to come to the best or preferable decision on the applicant's claims within the procedures required, permitted and limited by Part 7AA of the Migration Act including:

    i. the discretion for the IAA to get information from any person, including an applicant pursuant to s 473DC;

    ii. the ability of an applicant to give “new information” as defined, to the IAA (ss473DC and 473DD);

    iii. the discretion for the IAA to invite an applicant to attend a hearing;

    iv. that nothing in s 473DC or elsewhere in Part 7AA of the Migration Act precluding the IAA from informing the applicant of issues arising on the review; and

    v. the power to remit the matter to a delegate.”

28. With regard to this ground, it may be thought that, where the IAA differs from the delegate’s decision, the IAA should have some input from the Applicant when the issue of a different finding is something that had never been raised before.

29. Whether or not such a contention is correct is not the point here because the Applicant was clearly asked about relocation to Kabul in the TPV interview. 

30. Paragraph 22, to which I have already referred, shows that this was an issue that was canvassed.  While the delegate may not have found that there was any risk of serious harm no matter where the Applicant resided, the IAA came to a different conclusion. 

31. This is part of the IAA’s process; that it must bring a fresh eye to bear upon all of the matters that were before the delegate who made the decision.  This is because the IAA is that next step of reviewing a decision so as to ensure that a correct decision has been made.

32. It is a matter for the IAA in looking at all of the material before the IAA as to what findings it makes.  In this case, the Applicant was actually asked about relocation to Kabul and his answers were that it would not matter; he would still be discriminated against because of his ethnicity and his uncles would still be able to get him.

33. The IAA took into account exactly what the Applicant had said and looked at all of the material before it and came to the conclusion that what the Applicant had said was not entirely accurate and that there would not be a real risk of harm in Kabul. 

34. There is no need, in a situation where the Applicant has been spoken to about a particular matter, notwithstanding that it was in another interview, for there to be further information given to the IAA by the Applicant himself.

35. It is, therefore, a matter where there has been no unfairness to the Applicant, even if such a ground were to be a matter that I needed to look at, because of the clear canvassing of that matter.

36. There is nothing else that would show me that there had been any unfairness.  All that has been shown is that the IAA did not slavishly follow what the delegate had done, but had actually brought a fresh set of eyes to bear upon this issue. 

37. Therefore, I do not see that there is any merit in ground two and that ground fails.

38. The ground three is as follows:

    “3. The Tribunal’s decision was affected by jurisdictional error in the form of apprehended bias. A fair minded and informed observer might conclude that the Tribunal might not have been impartial, or approached the issues with an open mind, when it conducted a review in circumstances where:

    a. prejudicial material was provided to the Authority by the Secretary of the Department of Immigration on the basis that the Secretary considered it to be relevant (s.473CB(1)(c));

    b. the Authority did not disclose to the Applicant the existence of the Notification or the prejudicial material; and

    c. the Notification was not a valid notification under s 473GB of the Migration Act in that it did not identify any ground that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and

    d. the Notification was not a valid notification under s 473GB of the Migration Act in that it merely repeated part of the language of s 473GB and did not identify whether s 473GB applied to the document or to information in the document and, if information, which information.

    e. the Authority's task on review under s.473DB was to review the fast track decision by considering the review material provided to it under s 473CB.”

39. Ground three is a submission that, by the way the IAA dealt with the certificate and the related documents, there must be jurisdictional error because there is apprehended bias.  The submission is that the bias can be inferred because prejudicial material was provided to the IAA.  The IAA did not disclose those documents to the Applicant; the certificate was, therefore, invalid and the IAA’s task on review was to consider the review material before it.

40. It is difficult to ascertain what it is that is being complained about here because there has been no request by the Applicant for the materials in the certificate and the Court is at a complete loss as to what those documents are and how it is that there would be apprehended bias. 

41. I pause to note here that, whilst not wanting to get into a debate as to the merits of Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136, which was a Full Court decision, I am of the view that the remarks of Justice Dowsett are quite correct. In a case like this, there is either bias or there is no bias and the whole notion of apprehended bias really does not apply in these matters.

42. But AMA16 (Supra) was a successful appeal. It seems that once a successful appeal is notified to the profession, it suddenly becomes a “game changer” and is used to bolster claims of jurisdictional error in many other cases, most of which have only passing similarities to the legal issues involved in the successful appeal.

43. It seems that the solicitor for the Applicant in this case, has simply drawn up a “catch-all” ground hopefully to capture something that may be of interest.

1. But here, there is nothing that has been shown to me that would remotely be prejudicial.  This is because we do not know what is in the certificate and it seems very hard to justify any claim that the IAA here would have been prejudiced against the Applicant when it has clearly looked at the matters and found in the Applicant’s favour on so many issues where the delegate had not found in the Applicant’s favour.

2. The most telling findings are that the IAA accepted that the uncles did murder the father; were ready to frame the Applicant for it; and there would be a real risk of serious harm to the Applicant is he returned to the Anguri district.  In a case where the IAA has made those sorts of findings contrary to what the delegate has found, it is very difficult to come to any sort of conclusion that there could have been anything in the certificate that would have caused any form of bias against the Applicant in any case. 

3. As I say, I do not even really have to consider that issue because there has been no real allegation of prejudicial material brought to the Court. 

4. So that deals with all of the matters that were put in the grounds of the application for review.

5. On 16 March this year, so some ten days ago, the solicitor for the Applicant submitted an affidavit which simply read:

   “1. I am the solicitor on file for the applicant in the proceedings.

   2. I am seeking an adjournment for the hearing to seek instructions from the applicant.

   3. The reason for this request is explained in detail below.

   4. I have not been able to receive instructions from the applicant for the following reasons:

   a. It has been two and half months that we have not been able to contact our client and seek instructions.

   b. The phone number we have on file for the applicant is switched off or disconnected. We tried all avenues including contacting his friend to get in contact with the applicant but with no success to avail.

   c. His friend who on the first instance had put him in touch with us did not know about his whereabouts too.

   d. We also contacted his relation Zia Shahid Zada who also did not know about applicant’s whereabouts. He promised that he would go to the Applicant’s place of residence and former workplace to see if he can be located and put in contact with us.

   e. We contact salvation army, Rails and MDA to see he has been in touch with these organizations.

   f. After two months of no contact and constant trying, we got extremely worried about his well being and safety. We asked his relative to report the client as missing to the authorities.

   g. All these times, due to the applicant’s mental health conditions we did not know if he had committed suicide or if he just did not want to talk to people because of the stress of the proceedings.

   h. His friend recently got in touch and advised that he has found some leads about his whereabouts and would go and attempt to locate him and then put us in contact with him.

   i. To date he has not be able to get the client speak to us.”

6. The affidavit goes on to say that the client or Applicant has been depressed and sick.  It says that the barrister who had been briefed was not going to be able to attend the hearing on 26 March as they had not been paid.  It said that the solicitor said he needed more time to speak to the Applicant to seek instructions, prepare submissions and be sure that the Applicant can pay the fees.  The solicitor has subsequently withdrawn.

7. The Applicant turned up here in person today and sought an adjournment.  He said that he was going through psychological issues.  This matter has been on my list now for quite some time and the date had been given in October of last year. 

8. The Applicant has had five months to sort the matter out. He said today that he was going through psychological issues but neither the solicitor who put the affidavit in, nor the Applicant, have provided any proof or corroborative material of those issues and what treatment had been done for that “illness”.

9. Given all of those matters, I was not disposed to order an adjournment. 

10. The Applicant said to me again that he had issues and that his life was in danger if he goes back to Afghanistan.  He told me that Hazaras are the only ones who are targeted in Kabul; that Anguri was not a big place and that people can come to Kabul and take a message back to his uncles and that’s why he was still worried; and that he wanted a guarantee from the Department of Immigration and Border Protection, which is now the Department of Home Affairs, that they would be able to guarantee that nothing would happen to him if he were to go back to Kabul.

11. The issues that he raised before me are issues that have been before the IAA and the delegate before and are nothing new and have been looked at by those bodies. 

12. Curiously, the Applicant, who has been here since 2012, said that he has been waiting for seven years for decisions to be made and the fact that decisions have not been made are the things that are stressing him out.  If that were so, an adjournment is not going to help him one little bit and a decision needs to be made. 

13. However, it is incorrect to say he has been waiting for years for decisions to be made.  Decisions have been made by the IAA and the Applicant just does not like those decisions and wants to come to Court to challenge those decisions. 

14. The fact is that a decision has been made now, today. Having a look at all of the matters before the Court, taking into account the very extensive grounds for this application, the decision is that, notwithstanding everything that had been said in his favour, there is no jurisdictional error that can be established and, therefore, the application is dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 17 May 2018