BRA17 v Minister for Immigration and Anor

[2020] FCCA 1375

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRA17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1375

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority gave proper consideration to the applicant’s claims – whether the applicant was afforded an opportunity to comment on the claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DB, 473DC, 473DE, 476

Applicant: BRA17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 214 of 2017

Judgment of: Judge Street

Hearing date: 29 May 2020

Date of Last Submission: 29 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The applicant appeared in person via audio link

Solicitors for the Respondents: Ms C Allen, Sparke Helmore, via video link

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,100.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 214 of 2017

BRA17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND 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) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 3 April 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise 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 2 April 2013.

4. The applicant was found to be a Hazara Shia from a particular village and district in the relevant province.

5. The applicant claimed that his family left Afghanistan because of issues his father had in 1988, and travelled to Pakistan and lived there for a year before moving to Iran. 

6. The applicant claimed that he, together with his wife and family, returned to Afghanistan in 2005 and lived in Kabul. The applicant’s father returned to the home village, attempting to reclaim the land, but was told that land was taken in his absence by the Taliban.

7. The applicant claimed that he and his family returned to Iran and that his father remained in Afghanistan. The applicant alleged that there was a dispute over the acquisition of the land and that his father has not been heard of since, and that the applicant was told that his father had been killed. 

8. The applicant claimed that he remained in Iran then until 2012, when he returned to Kabul with his wife and children and his wife’s younger brother. The applicant claimed that he returned to his home area and went to find out about recovering the land, occupied by the Taliban. The applicant alleged that this led to threats to the applicant. The applicant alleged that the applicant’s wife visited a Hospital and a doctor tried to befriend the wife and the doctor had contact with the Taliban and that the doctor threatened the applicant to leave his wife and depart Afghanistan or he would be killed.

9. The applicant alleged that he was unable to return to Iran and that he arranged for his wife to be taken to Iran to live with his brother and mother and that in 2016, his wife’s younger brother was deported from Iran and that the applicant’s wife returned to Kabul with the applicant’s children and her younger brother. 

10. The applicant fears returning to Afghanistan as a Hazara Shia with a family association through his father with a particular party and due to his family’s association with attempts to reclaim the family land, which was acquired, the applicant alleges, by the Sepah and the Taliban, and as a returnee from the West, and by reason of his illegal departure and being a failed asylum seeker.

11. On 18 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On 28 October 2016, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise 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 submissions and new information. The Authority identified taking into account the submissions dated 18 November 2016 insofar as it contained new information, and was satisfied that there were exceptional circumstances to justify considering the same.

12. The Authority identified obtaining new information in relation to Mazar-e-Sharif. The Authority wrote to the applicant on 2 December 2016 inviting the applicant to comment on that country information, and the applicant responded to that invitation on 21 December 2016, and the Authority expressly referred to taking into account those submissions in response to that invitation. 

13. The Authority summarised the applicant’s claims and set out the relevant law including in an annexure entitled Applicable Law incorporated by pagination in the Authority’s reasons.

14. The Authority referred to the applicant’s claims concerning the attempts to reclaim the family land and the claims that the land is now occupied by the Taliban and Sepah members, who the applicant claims is responsible for his father going missing in 2009.

15. The Authority referred to concerns in relation to the applicant’s claims as to the absence of evidence to support continued alignment between the Taliban and the Akbari, who were elected to the parliament in the relevant province, and also observed that there was no evidence of a continued Taliban presence in the relevant province. The Authority was not satisfied that the Taliban continued to occupy the applicant’s land or that the Taliban have a presence in his home area or other parts of the province. The Authority did not accept that the Taliban occupied the applicant’s family’s land. The Authority was not satisfied that the applicant’s father was targeted by the Taliban in 2009. 

16. The Authority also did not accept that the applicant was targeted by the Taliban in 2012 due to the land dispute. The Authority found it implausible that the Taliban would have pursued the applicant in Kabul and was not satisfied the applicant has a well-founded fear from the Taliban in his home province or anywhere else in Afghanistan due to the land issue.

17. The Authority was prepared to accept that the family land had been occupied by Hazaras associated with the Akbari faction given the applicant’s family’s extended absence from the home area, and accepted that the applicant’s father commenced court proceedings to secure the same and that in 2008, the matter was not resolved in his father’s favour due to fake documents.

18. The Authority accepted that the applicant’s father may have been reluctant to accept the adverse outcome but did not accept the claims in relation to the applicant’s assertion that his father was killed. The Authority referred to transfers of money from Australia to Kabul to a person with the same name as the applicant’s father. The Authority was not satisfied that the applicant’s wife or his uncle would be in possession of his father’s taskera. The Authority considered that the information in terms of the transfers indicates that the applicant has been sending money to his father and contrary to the applicant’s claims, his father is not missing or dead. 

19. The Authority did not accept that the applicant would have been targeted by those who held the land, given that the court matter was resolved in their favour. The Authority was not satisfied that the applicant’s father is missing or killed as claimed by the applicant. 

20. The Authority was not satisfied that the applicant attempted to reclaim the land or was threatened by the occupants in 2012. The Authority was not satisfied that the applicant has a well-founded fear from Hazaras associated with the Akbari faction who occupied their family land in his home province. 

21. The Authority was satisfied that the applicant had a well-founded fear of persecution as a Shia Hazara on the roads surrounding his home village if he were to attempt to return there.

22. The Authority correctly identified that the real chance of persecution must relate to all areas of the receiving country. The Authority was not satisfied the applicant had a well-founded fear of persecution in Mazar-e-Sharif. The Authority did not accept that the applicant has a well-founded fear of persecution in relation to other areas in Afghanistan such as Mazar-e-Sharif. The Authority did not accept that the applicant would be sought out in Mazar-e-Sharif due to the land dispute, given that he would be relocating to an area where he is not known.

23. The Authority was not satisfied the applicant faces a real chance of harm from Hazaras affiliated with the Akbar faction in Mazar-e-Sharif due to land disputes. 

24. The Authority was not satisfied that the evidence indicates that ISIS, the Islamic Movement of Uzbekistan (“IMU”) or the Taliban were involved in the incident the subject of country information in October 2012, or that the incident is indicative of the onset of a sectarian campaign in the Balkh Province. The Authority was not satisfied that the incident is indicative of a risk of harm to Shia Hazaras living in Mazar-e-Sharif itself. The Authority was not satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 indicate that the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif in the reasonably foreseeable future. 

25. The Authority referred to possible discrimination and was not satisfied that there is a real chance the applicant would be denied the capacity to earn a livelihood or that he would be subject to economic hardship or other serious harm if returned to Mazar-e-Sharif.

26. The Authority was not satisfied that the country information supports that returnees like the applicant who have lived in a western country such as Australia and are able to access Mazar-e-Sharif by air without using road travel are targeted in Mazar-e-Sharif by insurgents or that the applicant would be targeted on return to Mazar-e-Sharif as a Hazara Shia with an imputed pro-Western political opinion. The Authority was not satisfied that the applicant would be imputed with an adverse political opinion in Mazar-e-Sharif as a Hazara Shia who has resided in a western country such as Australia. 

27. The Authority was not satisfied that there is a real chance of harm for the applicant upon return to Mazar-e-Sharif and found that the applicant could safely access that by air. 

28. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act. 

29. The Authority turned to the issue of complementary protection and referred to the findings that had been made and took into account country information and was not satisfied that there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif and found that it is reasonable for the applicant to relocate there.

30. The Authority identified the UNHCR Guidelines and identified country information that Mazar-e-Sharif is under effective control of the Afghan government. The Authority referred to employment opportunities. The Authority referred to there being relatively more employment opportunities in Mazar-e-Sharif. The Authority accepted that there is unemployment and under employment and noted that the applicant, although having limited education, has worked in a range of jobs since the age of 14, including as a shopkeeper in a grocery shop for three years, a baker, and a hairdresser/barber in Kabul, and in Iran as a labourer in the construction industry, as well as in chicken and cement factories. The Authority referred to the applicant having worked in the construction industry as a plasterer while in Australia. The Authority did not accept the applicant’s claim of limited skills and found that he has worked in a range of capacities and is resilient and resourceful and was satisfied that the applicant would be able to obtain employment to enable him to subsist in Mazar-e-Sharif. 

31. The Authority referred to the applicant’s immediate family and his father residing in Kabul but identified that the applicant would arrive as a young single man of working age without dependents in Mazar-e-Sharif and that he did not have any vulnerabilities, and although nepotism exists, was satisfied that the applicant has demonstrated the ability and capacity to establish himself in new locations. The Authority was satisfied that the applicant has the skills, life experiences and resilience to relocate and establish himself in an area of Mazar-e-Sharif where employment, accommodation and other services would be available to the applicant. 

32. The Authority also referred to the applicant having been living apart from his family since 2013, who remain in Kabul and in Iran, and the separation from his family. The Authority was satisfied that the applicant is an able-bodied man with no health problems or other specified vulnerabilities of the kind identified by the UNHCR and that it is reasonable for the applicant in the circumstance to relocate to Mazar-e-Sharif despite the separation from his family.

33. The Authority found that the applicant would be able to safely fly to Mazar-e-Sharif via Kabul.

34. The Authority was satisfied that it is reasonable for the applicant to relocate to Mazar-e-Sharif where he does not face a real risk of significant harm. 

35. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

36. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 19 April 2017. On 1 June 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant claimed that he had tried to forward recent country information to the Court in relation to the situation in Mazar-e-Sharif and in Kabul.

4. The Court explained to the applicant that it was unable to receive fresh evidence in relation to the merits of the applicant’s claims. The first respondent indicated that it objected to the tender. The Court conveyed to the applicant that the documents would not be relevant, and even if they had been sent to the Court, in respect of which there was no record of the same, they would not be admitted into evidence because they are not relevant to establishing any error in the exercise of the Authority’s review under pt 7AA or in the Authority’s reasons.

5. From the bar table, the applicant maintained that the security situation for him in Afghanistan was dangerous, that his family were in other locations, that it was not safe for him to return to his home country or to Mazar-e-Sharif, and that the Taliban posed a risk for him. The applicant’s oral submissions, in substance, invited this Court to engage in merits review.

6. The Authority expressly considered the separation by the applicant from his family, as well as the applicant’s claims in relation to the Taliban, and the location of his family and made adverse findings dispositive of the applicant’s claims that were open to the Authority for the reasons given by the Authority. Those reasons, as summarised above, cannot be said to lack an evident and intelligible justification. 

7. Further, the Authority’s reasons reflect a genuine intellectual engagement with the applicant’s claims, evidence, and submissions.  No jurisdictional error arises by reason of anything said by the applicant in the course of the hearing. 

The grounds

1. The grounds in the application are as follows:

   1.The assessor failed to properly consider all of my claims.

   2.The assessor didn’t give me a chance to comment on one aspect of my claims.

Ground 1

1. Ground 1 is a bare assertion of a failure to consider all claims that, without particularisation, is incapable of making out any relevant error.

2. Further, on the face of the material before the Court, the Authority correctly identified the applicant’s claims and made findings dispositive of those claims. There is no claim of the applicant that has been identified that it was not the subject of proper consideration by the Authority and the subject of dispositive findings. 

3. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, again, without particularisation, this ground is incapable of making out any relevant error. 

2. It is apparent that the applicant was given an opportunity to put on new information and submissions, and that the Authority wrote to the applicant in respect of the new country information in respect of relocation. The Authority took into account the applicant’s response and that response included detailed submissions in relation to why it would not be reasonable for the applicant to relocate to other areas in Afghanistan, including Mazar-e-Sharif. 

3. In these circumstances, the absence of any express consideration of a power under s 473DC of the Act by the Authority cannot be said to lack an evident and intelligible justification. 

4. That justification is the opportunity the applicant had already been given by reason of the Authority’s letter dated 28 October 2016 and the invitation to comment dated 2 December 2016 and the taking into account of the same in the Authority’s reasons. 

5. Further, insofar as the Authority referred to the new country information, the Authority complied with requirements of s 473DE of the Act by the sending of the invitation letter. Further, in any event, under s 473DE(3)(a) of the Act, that provision has no application in respect of country information.

6. Given the provisions of pt 7AA of the Act, including s 473DB, that identifies the Authority must review the relevant decision by considering the review material provided to the Authority without accepting or requesting new information and without interviewing the referred applicant subject to the provisions of the part, there was, in the circumstance of this case and he steps taken by the Authority, no obligation upon the Authority to invite the applicant to further comment in relation to the reasonableness of the applicant’s relocation to Mazar-e-Sharif or any other issue. The steps taken by the Authority gave the applicant the opportunity to comment of the reasonableness of relocation.

7. No jurisdictional error is made out by ground 2.

8. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 9 June 2020