FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRI16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3353 |
| Catchwords: MIGRATION – Protection visa application – judicial review of a decision of the Immigration Assessment Authority – whether IAA failed to consider applicant’s claims – whether IAA acted unreasonably – whether relevant information was ignored – no jurisdictional error found – application dismissed. |
| Legislation: Evidence Act 1995 (Cth) ss.55, 76 Pt.7AA |
| Applicant: | BRI16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 289 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 1 March 2018 and 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | PERTH |
| Delivered on: | 20 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F. Faris |
| Solicitors for the Applicant: | Rebus Legal |
| Counsel for the First Respondent: | Ms A. Ladhams |
| Solicitors for the First Respondent: | The Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicant’s application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
No. PEG289 of 2016
| BRI16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”).
The IAA’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), refusing to grant the applicant a protection visa.
The Court has reviewed the factual material provided by the parties and adopts the facts as outlined at paragraph 3 to 20 in the Minister’s written submissions dated 8 February 2018 as the procedural and factual background to these proceedings. These background facts were not in dispute and provide, relevantly, as follows.
The applicant, a citizen of Afghanistan, arrived in Australia at Christmas Island on 22 October 2012 as an unauthorised maritime arrival.
On 12 May 2015, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (the “Act”) to allow the applicant to make an application for a protection visa.
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- Case
- [2018] FCCA 3353
- Decision Date
CaseChat Overview and Summary
The legal issues before the Federal Circuit Court were whether the IAA committed jurisdictional error in its review of the protection visa refusal. Specifically, the applicant contended that the IAA failed to give due consideration to his claims, that the decision maker was unreasonable, and that the IAA failed to consider relevant information. These grounds were raised in an amended application filed by the applicant's legal representatives.
The Court considered the IAA's assessment of the applicant's claims. The IAA found that while the applicant would face a real risk of persecution from the Taliban due to his Hazara ethnicity if he returned to Ghazni province, it was reasonable for him to relocate to Kabul, where he would not face significant harm. This conclusion was based on country information indicating that Hazaras form a substantial portion of Kabul's population, face some societal discrimination but not to a level constituting persecution, and that the Afghan government maintained effective control over the city. The IAA also found the applicant's account of detention and mistreatment by the Taliban to be implausible, noting inconsistencies and the lack of a ransom demand. Furthermore, the IAA determined that the applicant's return from a Western country did not place him at a real risk of harm in Kabul.
Ultimately, the Court dismissed the applicant's application. The Court found that the applicant's amended application and supporting affidavit were deficient, lacking particulars and containing inadmissible evidence. The Court proceeded on the basis that the grounds of review in the amended application were the ones to be considered, and after examining these grounds, it was not satisfied that the IAA had committed jurisdictional error.
Orders
Orders of the court
1.
The applicant’s application is dismissed.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH
No. PEG289 of 2016
BRI16
Applicant
And
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.
This is an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”).
2.
The IAA’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), refusing to grant the applicant a protection visa.
3.
The Court has reviewed the factual material provided by the parties and adopts the facts as outlined at paragraph 3 to 20 in the Minister’s written submissions dated 8 February 2018 as the procedural and factual background to these proceedings. These background facts were not in dispute and provide, relevantly, as follows.
4.
The applicant, a citizen of Afghanistan, arrived in Australia at Christmas Island on 22 October 2012 as an unauthorised maritime arrival.
5.
On 12 May 2015, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (the “Act”) to allow the applicant to make an application for a protection visa.
6.
On 8 July 2015, the Department again wrote to the applicant and invited him to make an application for a subclass 785 temporary protection visa or a subclass 790 safe haven enterprise visa (“SHEV”).
7.
On 6 August 2015, the applicant lodged an application for a temporary protection visa. The applicant’s claims are:
a) He fears harm in Afghanistan from the Taliban and Daesh due to his Shia Hazara ethnicity.
b) His life was in danger because the Taliban wanted him to hand over to them his son who worked with a company at the Australian base in Uruzgan.
c) While travelling by road from Kabul to Jaghori, he was abducted and mistreated by Taliban forces. He escaped and is afraid the Taliban will now kill him, as they have control of the country, including roads to Jaghori.
d) Because the Taliban has spies in Australia they will know he is in Australia and he will face harm if he returns to Afghanistan.
e) He is unable to relocate anywhere else in Afghanistan as the Taliban has influence everywhere and there is no safety in the whole country.
f) Daesh is now operating in Afghanistan and killing Hazaras. The Islamic State movement is making significant gains in Ghazni, Zabul and other parts of Afghanistan. The Afghan authorities are unable to safeguard Hazaras as they are unable to take care of themselves.
g) A Hazara person, who originated from the same village as the applicant, recently returned to Afghanistan and was beheaded by insurgents.
8.
The applicant was interviewed by a Ministerial delegate on 21 October 2015.
9.
On 29 April 2016, the delegate made a decision not to grant the applicant a protection visa.
10.
The delegate’s decision was then referred to the IAA for a “fast track” review under Part 7AA of the Act.
11.
On or around 25 May 2016 the applicant provided the IAA with a written submission, pictures of his son (as evidence of his son’s employment) and a reference letter for the applicant's son from the son’s employer.
12.
On 10 June 2016, the IAA affirmed the decision not to grant the applicant a protection visa.
13.
By application filed in this Court on 5 July 2016, the applicant seeks judicial review of the IAA’s decision.
14.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
The IAA’s Decision
15.
The IAA’s decision appears at pages 229 to 244 in the Court Book.
16.
The applicant satisfies the criteria in section 5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
17.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under section 473CA. This includes:
a) a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b) material provided by the “referred applicant” to the delegate before a decision was made;
c) any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d) the referred applicant’s contact details.
18.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time his or her decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1).
19.
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
20.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act which provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
21.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
22.
As correctly summarised by the Minister, and not disputed, in relation to this applicant the IAA considered the materials referred by the Secretary under s.473CB. The IAA noted that it had also received a written submission filed by the applicant. That submission contained new information that was not before the delegate as follows ([5]):
a) Photographs evidencing the applicant's son's employment in Afghanistan and a reference to Australian Sapper magazine.
b) Details regarding mistreatment of the applicant by the Taliban and the applicant's escape from Taliban detention.
c) Information regarding deterioration in security in Afghanistan in 2014 and 2015.
d) Information from 2015 regarding the Taliban and hostility towards Afghan citizens expressing their opposition to the Taliban.
e) Information from 2014 regarding the risk in Afghanistan to returnees.
23.
The IAA considered the applicant’s written submission in so far as the applicant noted areas of disagreement with the delegate's decision. However, the IAA found that it was unable to consider other new information provided with the applicant’s submission because the matters in s.473DD were not satisfied. The IAA so concluded because:
a) the applicant did not provide any explanation as to why the new information was not previously provided to the delegate;
b) the applicant did not explain why the new information may be regarded as credible personal information that was not previously known and, had it been known, may have affected the assessment; and
c) the new information pre-dated the delegate's decision ([6]).
24.
The IAA accepted that the applicant was an Afghan Hazara from the Jaghori district ([8]).
25.
The IAA noted that the applicant had claimed that he ran a business in Kabul from 2006 to 2012 but only lived in Kabul from 2010. The IAA found this to be unreliable:
9. The applicant has provided conflicting information regarding his period of residence in Kabul. At the visa interview the applicant stated that prior to coming to Australia he was living in Kabul, but his home was in Jaghori, Ghazni province. He stated that he had operated a shop in Kabul from 2006 until 2012 but he had only been resident in Kabul one to two years prior to his departure from Afghanistan in 2012. He said that as a business partner worked at the shop, he continued to reside in Jaghori and would only go to Kabul when required, which was between once a week and once a month. In the submission to the IAA the applicant stated that in 2010 he moved his family to Kabul where he established a home with them. At the visa interview the applicant confirmed that his wife and children still reside in Kabul.
10. I find the applicant's story about commuting between Ghazni and Kabul in the period 2006 to 2012 not to be plausible. According to 2007 country information, the insurgency in Afghanistan gained momentum in the south and east, moving from its traditional strongholds to Ghazni, Paktia, Paktika, Nangahar, and Laghman, with insurgents occupying critical roads and conducting ambushes from these strategic points. With the increased insurgent activity on the roads in Ghazni, I do not accept as plausible that the applicant would commute regularly by road between Ghazni province and his shop in Kabul. I accept that the applicant operated a shop in Kabul between 2006 and 2012 and find that he resided in Kabul with his family in this period.
26.
In assessing the applicant’s claims about detention and his escape from the Taliban, the IAA accepted that the applicant's son may have been employed at the Australian base at Uruzgan but did not accept that the applicant was targeted by the Taliban because of his son’s employment:
11. The applicant claims that his name was on a watch list and he was targeted by the Taliban because his son worked at the Australian base in Uruzgan. He claims that as a result of this, he was detained and mistreated by the Taliban on the road from Kabul to Ghazni around three months prior to his departure from Australia. The applicant claims to have been beaten and tortured by the Taliban during this detention. He claims that he was detained in a house, where he was locked alone in a room. He claims to have escaped by breaking through a glass window, as the Taliban had departed and left the premises unguarded.
12. When pressed at the visa interview on 21 October 2015 to describe his treatment by the Taliban the applicant stated that "It wasn't a lot of beating. Just to scare me and frighten me." At the entry interview on 2 November 2012 the applicant made no mention of mistreatment or torture by the Taliban. When presented with this inconsistency at the visa interview, the applicant stated it occurred because he was not given the opportunity at the entry interview to provide specific details. In the submission to the IAA the applicant cited the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and stated that torture is not only physical but also mental.
13. I accept that the applicant's son may have been employed at the Australian base in Uruzgan, however I do not accept that the applicant was targeted by the Taliban because of this and do not accept as plausible the applicant's account of his detention and mistreatment by the Taliban and subsequent escape. Country information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant's case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at an Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son's employment at the Australian base in Uruzgan, detain and blindfold him, threaten him with harm and then leave him locked in a room in an empty house. If the applicant's son was of such interest to the Taliban that the applicant was on a watch list and targeted individually, it is more plausible that once detained, he would have been closely monitored until such time as the demand for his son to surrender to the Taliban had been resolved. I find that the applicant was not detained by the Taliban as claimed, was not mistreated or tortured and that the Taliban has no ongoing interest in him.
17. I have found that the applicant was not detained and mistreated by the Taliban as claimed and that the Taliban has no ongoing interest in him as a result of his son's employment at the Australian base in Uruzgan. As a result of this I find that the applicant does not face a real chance of persecution from the Taliban due to any involvement by his son with the Australian base in Uruzgan.
27.
After summarising relevant country information, the IAA accepted that the applicant would face a real risk of being killed by the Taliban due to his Hazara ethnicity if he returned to Ghazni province and his home district of Jaghori ([21]). This finding was based on the historic discrimination against Harazas, particularly by the Taliban, the fact that the applicant would be readily identifiable as a Hazara if he were to return to Ghazni, and that the security situation in Ghazni is “uncertain” ([18]-[20]).
28.
Section 36(2B) of the Act provides that there is taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person will suffer significant harm. Despite finding that the applicant would be harmed if he returned to Ghazni province, the IAA was not satisfied that the applicant would face serious harm in Kabul ([22]). This finding was based on:
a) the fact that Hazaras comprise the largest ethnic group in Kabul;
b) country information which did not indicate that Shia Hazaras are subject to harassment or discrimination amounting to persecution in Kabul;
c) the fact that that the security situation for Hazaras does not differ significantly from that experienced by the general population in Kabul; and
d) the fact that that the Afghan government maintained effective control over Kabul ([23]-[28]).
29.
On the basis of the country information, the IAA accepted that the applicant would be viewed as returning to Afghanistan from Australia, a western country ([31]). However, the IAA did not accept that this placed the applicant at risk of harm:
32. I accept that there have been possible instances of Shia Hazaras being targeted by anti-government elements for reason of their having travelled to Australia, however these incidents occurred while the individuals concerned were travelling by road through regional areas of Afghanistan. In 2014 there were uncorroborated news reports that an Afghan Hazara from Jaghori District was abducted and tortured by the Taliban following his deportation from Australia. DFAT has since been in contact with the individual, who is not currently pursuing any action regarding this matter. There is no evidence of Shia Hazara returnees from western countries being harmed by insurgents like the Taliban, Al Qaeda, or Oaesh in Kabul. DFAT assesses that, with the exception of those travelling by road between Kabul and the Hazarajat, low-profile Hazaras who have spent time in western countries face a low risk of violence as a result of those international links. The applicant would access Kabul through its international airport. There are no reports available to indicate that attacks similar to those on the roads between Kabul and Hazarjat, on account of having any association to a western country, have occurred in Kabul itself. As a result of this I am not satisfied that the applicant faces a real chance of persecution due to his return from a western country after seeking asylum, including as a Hazara Shia, or for any other reason.
30.
Overall, the IAA was not satisfied that there was a real chance the applicant would face persecution upon return to Kabul for any of the reasons raised by the applicant, either individually or cumulatively, and determined that any fear of persecution was not well-founded ([34]).
31.
The IAA also considered the relevant complementary protection provisions but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Kabul, there was a real risk that the applicant will suffer significant harm:
37. The applicant claims to fear harm in Afghanistan due to his Hazara race, Shia Muslim faith, as a failed asylum seeker, as a returnee from the West and because of his son's employment at the Australian base in Uruzgan. While I have found that the applicant does not face a real chance of persecution from the Taliban due to any involvement by his son with the Australian base in Uruzgan, I have found the applicant would face a real chance of persecution from the Taliban due to his Hazara ethnicity if he returned to Ghazni province and his home district of Jaghori. I am satisfied that this harm would amount to significant harm through infliction of cruel or inhuman treatment or punishment.
39. I do not accept that there is a real risk the applicant will suffer significant harm in Kabul. As noted previously, Hazaras comprise the largest ethnic group in Kabul in Kabul, where estimates of the Hazara population vary between around 1.6 million to two million, or 40-50 per cent of city's population. DFAT reports that there is currently no evidence of any official policy of discrimination pursued by the government on the basis of ethnicity and that while Hazaras still face some societal discrimination, this tends to occur in the form of nepotism in favour of particular ethnic and religious groups, rather than negative institutional discrimination against a particular group. Hazaras are active in the Afghan community, particularly in politics, education and civil societ y. Country information does not indicate that Shia Hazaras in Kabul are subject to harassment or discrimination amounting to significant harm of a level to constitute cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is there information to indicate that Shia Hazaras are denied access to basic services or to earn a livelihood. Because of the city's size and growth, Kabul offers a greater range of employment opportunities than many other areas of Afghanistan. Over the past decade, employment growth has been strongest in Kabul's service sector, including small businesses such as family-owned markets, and in the construction industry. Due to the significant military and government presence in Kabul, there are also employment opportunities in the armed forces and the civil service.
40. At the visa interview the applicant stated that in partnership with his nephew, he had operated a shop in Kota Sangi, a market area in Kabul, between 2006 and 2012. While at the visa interview the applicant stated he did not come to Australia only to go back to Kabul, as the security situation for the Hazara community in Kabul was poor, Kabul is under effective government control. The applicant is an able-bodied man who in the past has engaged in a range of commercial activities, buying, selling and trading goods I am satisfied on the evidence that the applicant has the capacity to undertake future commercial activities and country information indicates that such opportunities are available in Kabul, which has a wide range of commercial services available, including small family-owned markets, vegetable markets, butchers, clothes markets, home-ware stores, mobile phone shops and petrol stations. On the available evidence I do not accept that it will be difficult for the applicant to subsist to the extent there is a real risk the applicant will suffer significant harm arising from degrading treatment or punishment.
Proceedings in this Court
32.
On 5 July 2016, the applicant filed an application in this Court seeking judicial review of the IAA’s decision.
33.
At that time, the applicant relied on two grounds of review as follows:
a) Ground one claims that the IAA carried out the review in circumstances where the Secretary had not provided all of the material it was required to give the IAA under s.473CB of the Act.
i) The applicant particularised his first ground by stating that the IAA does not set out the material provided to it by the Secretary under s.473CB of the Act in its reasons for decision and it is to be inferred thereby that the Secretary did not provide all the material it was required to provide.
b) Ground two asserts that, contrary to s.473DB(1) of the Act, the IAA did not consider all of the material given to it by the Secretary under s.473CB of the Act.
i) The particulars relevant to this second ground claim that the IAA does not set out the material provided to it by the Secretary under s.473CB of the Act in its reasons and it is to be inferred that the IAA did not consider all of that material.
34.
On 3 August 2016, Registrar Eaton of this Court made orders giving the applicant an opportunity to file an amended application and further affidavit evidence by 21 September 2016 and requiring him to file submissions 42 days before the hearing.
35.
The applicant did not file an amended application or provide this Court with any written submissions in support of his application.
36.
On 20 June 2017, the applicant’s solicitors notified the Court that they had ceased acting for the applicant.
37.
On 8 February 2018, the Minister filed detailed written submissions addressing the applicant’s two grounds of review.
38.
No written submissions were received from the applicant at this time.
39.
On 1 March 2018, the applicant appeared in person before this Court. He advised that his previous lawyer had all of the documentation relevant to his matter and had not provided it to him despite being asked to do so. This material included the Court Book and the Minister’s submissions. Counsel for the Minister agreed that, in the circumstances, the matter should be adjourned so that the applicant could seek new legal representation.
40.
The matter was adjourned to a directions hearing on 22 March 2018 to allow the applicant to seek legal advice.
41.
On 22 March 2018, this Court ordered that the matter be listed for a final hearing on 6 September 2018. The applicant was ordered to file an amended application, any affidavits and written submissions 28 days prior to the hearing date (i.e. 9 August 2018). The Minister was ordered to file any affidavits and written submissions 14 days prior to the hearing date.
42.
On 14 August 2014, the applicant’s new lawyers filed an application (as opposed to an amended application, which, clearly, it was intended to be), an affidavit and written submissions.
43.
It does not appear that the Minister received a copy of the (amended) application.
44.
The (amended) application contained three grounds of review:
1. The decision maker failed to give due consideration to the Applicant’s claims.
2. Decision maker was unreasonable.
3. The second respondent failed to consider relevant information.
45.
The (amended) application was prepared by the applicant’s new lawyers but provides no particulars. This is unsatisfactory and arguably a reason to dismiss the application for lack of substance and clarity. The Court notes that in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 and in WZATH v Minister for Immigration and Border Protection [2014] FCA 969, it was held that a general, vague and insufficiently particularised application provided judicial justification for the dismissal of the proceeding.
46.
An omission of this sort might be expected from an unrepresented applicant with a poor grasp of the English language. In those circumstances, this Court usually allows the applicant to explain his or her position orally in court. This is how it should be, particularly when the visa in question relates to a protection claim: DQQ17 v Minister for Immigration and Border Protection [2017] FCCA 3207 per Colvin J. But that was not the case here. Here, the (amended) application, prepared by a lawyer, does not specify that it is an amended application, does not provide particulars, is undated and was filed late.
47.
The affidavit attached to the (amended) application is dated 14 August 2018 and was, again, prepared by the applicant’s new lawyers. The affidavit is 6 pages in length and contains 34 paragraphs. It also contains numerous attachments.
48.
It is arguable that this affidavit was intended to serve as particulars, although that was never made clear. Whatever the intention of the affidavit, the affidavit itself was lacking. On one level, the affidavit read more like legal submissions of the sort expected from counsel. Further, it was soon evident that there were issues in relation to the admissibility of much of the affidavit. At the hearing of this matter, the Minister objected to most of the affidavit evidence as follows:
Paragraph
Part
Objection
Relevant provision of the Evidence Act 1995 (Cth)
10 to 20 (including annexure A)
25 to 27
All
Relevance
(Except for the limited purposes of s 55(2)(b) of the Evidence Act 1995 to determine whether annexure A is admissible)
s 55(1)
21 to 24
All
Relevance
s 55(1)
28, 30,31
All
Relevance
s 55(1)
29
All
(a), (b), (c)
Opinion evidence Relevance
s 76
s 55(1)
32-34
All
Relevance
s 55(1)
34
From "however" to end of paragraph
Opinion evidence
s 76
49.
These objections were put to counsel for the applicant.
50.
It is expected that lawyers who appear before this Court will have a solid understanding of the rules of evidence (here, the rules that relate to relevance and opinion evidence). Regrettably, the lawyer acting for the applicant in this matter seemed incapable of addressing any of the Minister’s objections when asked to do so. In the end, he agreed to almost all of the Minister’s objections, with the result that the affidavit he had prepared (and which his client had, one assumes, paid for) was of no use to the applicant. This too is unacceptable. The applicant deserved much better.
51.
The applicant’s new lawyers also provided written submissions on 14 August 2018. These submissions did not clarify whether the applicant’s application of 14 August 2018 was an amended application and whether the two original grounds of review articulated in the applicant’s first application of 2016 were now abandoned. Again, arguably, the written submissions seek to provide the particulars lacking in the (amended) application. The Court has proceeded on that basis, as did counsel for the Minister who showed considerable patience throughout these proceedings.
52.
As noted, the (amended) application, affidavit and written submissions were all filed late. On 30 August 2018, the Court ordered by consent that on 16 August 2018, the applicant file and serve any amended application, any affidavits, written submissions and a list of authorities in support of the application for review.
53.
On the basis of the above, the Court assumes that the grounds of review in the 2016 application are abandoned.
54.
Accordingly, the Court will address the three grounds of review as articulated in the (amended) application of 14 August 2018.
Ground one
The decision maker failed to give due consideration to the Applicant’s claims
55.
In relation to ground 1, the applicant contended as follows in written submissions:
17. The Applicants entire claim is based on the premise that he feared harm to his life because he had problems with the Taliban due to his son’s employment at the Australian troop based in Uruzgan province, Afghanistan.
18. It is respectfully submitted that the IAA fell into Jurisdictional Error by not placing adequate weight on the Applicant’s claims insofar as him having been threatened.
Detention & mistreatment
19. The applicant claimed that he was detained and mistreated by the Taliban on the road from Kabul to Ghazni around three months prior to his departure from Australia.
20. The IAA did not accept as plausible the applicant’s account of his detention and escape stating that “Country Information indicates that while kidnappings are common in Afghanistan, they occur generally for the purpose of extracting money through ransom demands. In the applicant’s case, no ransom was demanded, apart from a request for the applicant to surrender his son who worked at an Australian base. I do not accept as plausible that the Taliban would target the applicant for individual adverse attention because of his son’s employment at the Australian base in Uruzgan…”
21. The IAA relied on country information that stated that Kidnappings are common in Afghanistan.
22. However, the IAA erred in finding that ‘because’ no ransom was demanded for the Applicant, that he could not have been kidnapped and tortured by the Taliban.
23. The IAA failed to consider that the Applicant may have been kidnapped for reasons other than a ransom demand such as his son being involved with Western forces.
24. The IAA fell into Jurisdictional Error by overemphasising the fact that whilst kidnappings are common in Afghanistan they generally are committed for ransom purposes and underemphasising that kidnappings can take place for other reasons too.
Travel between Kabul & Ghazni
25. The IAA found that the Applicant could not have travelled between Kabul and Ghazni when it stated as follows:
27. I find the Applicant’s story about commuting between Ghazni and Kabul in the period 2006 to 2012 not to be plausible. According to 2007 country information, the insurgency in Afghanistan gained momentum in the South and East, moving from its traditional strongholds to Ghazni, Paktia, Nangahar, and Laghman, with insurgents occupying critical roads and conducting ambushes from these strategic points. With increased insurgent activity on the roads in Ghazni, I do not accept as plausible that the applicant would commute regularly by road between Ghazni province and his shop in Kabul. I accept that the applicant operated a shop in Kabul between 2006 and 2012 and find that he resided in Kabul with his Family in this period.
26. The IAA had failed to take into account relevant information pertaining to the following facts:
a. That the Applicant had children in Ghazni Jaghori;
b. That the Applicant had land in Ghazni Jaghori; and
c. That the Applicant had a shop in Kabul operated by his business partner.
27. The failure of the IAA to consider the relevant information contained in paragraph 27 above, led to a finding that the Applicant could not have travelled between Kabul and Ghazni notwithstanding the fact that had the information been taken into consideration then the Applicant would have had very good reasons to have had to travel between Kabul and Ghazni.
56.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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