BRK16 v Minister for Immigration
[2019] FCCA 1851
•4 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRK16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1851 |
| Catchwords: MIGRATION – Application for judicial review – Safe Haven Enterprise Visa (SHEV) – review of decision of Immigration Assessment Authority (IAA) – protection visa –Hazara Shia – new information – “most recently” - whether IAA failed to consider exceptional circumstances outside sub-ss.473DD(b)(i) and (ii) – whether IAA failed to apply the real chance test correctly – whether the IAA erred in its application of s.5J – whether new information was excluded by s.473DE(3)(a) from operation of s.473DE(1) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 424A, 476, 473DC, 473DD, 473DE |
| Cases cited: ADE17 v Minister for Immigration and Border Protection [2018] FCA 282 |
| Applicant: | BRK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1744 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 5 June 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu, Hodges Legal |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The Applicant has leave to file and rely on the amended application dated 27 November 2017.
The application filed 6 July 2016, and amended 27 November 2017, is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1744 of 2016
| BRK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth), seeking judicial review of a decision of the Immigration Assessment Authority dated 8 June 2016, affirming the decision of a Delegate of the First Respondent, the Minister for Home Affairs (then the Minister for Immigration and Border Protection), dated 28 April 2016 to refuse to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).
Background
The Applicant is an Afghan citizen of Shia Muslim religion and Hazara ethnicity. He was born in [Village] in Qarabagh District, Ghazni Province, Afghanistan in 1982. The Applicant arrived in Australia without a valid visa by boat on 16 August 2012. On 30 August 2013 he applied unsuccessfully for a protection visa. By letter dated 27 August 2015, however, the Applicant was invited to apply for a Temporary Protection visa or a SHEV and on 10 November 2015, he applied for the SHEV.
The Applicant was interviewed in relation to his SHEV on 1 February 2016 with the assistance of an interpreter in the Hazaragi language. As I have said, the Delegate refused to grant the SHEV. On 2 May 2016 the Applicant’s matter was referred to the Authority for review and the Applicant was notified. By email dated 16 May 2016, the Applicant sent a submission dated 15 May 2016 to the Authority. On 6 June 2016, according to the Authority, it received a submission dated 2 June 2016 from the Applicant’s then solicitor and migration agent (June submission). The Authority affirmed the decision under review.
On 6 July 2016, the Applicant filed an application for judicial review to this Court. At the hearing on 5 June 2018, I granted leave to the Applicant to file and rely on an amended application dated 27 November 2017.
Applicant’s claims
As the Delegate and the Authority each largely accepted the Applicant’s claims as to his experiences in his home region, the following account of the Applicant’s claims is taken largely from the Authority’s decision, the Applicant’s written submissions to this Court, and with reference to the Applicant’s statement dated 8 October 2015 made in support of his SHEV. The Applicant, an Hazara Shia, claimed:
(a)he was raised by his paternal aunt and her husband Musa from age two, in Jaghori district, whilst his parents and siblings remained in Qarabagh district. He lost contact with them, and they later moved to Quetta, Pakistan;
(b)at age 15 (that is in about 1997), due to the Taliban's presence and activities in the area, the Applicant left Afghanistan and joined his family in Quetta. He learned his father had gone missing shortly after his family moved to Quetta (it was thought that he had been killed by the Taliban), and that his paternal uncle and brother had been killed by the Taliban in Afghanistan;
(c)he lived unlawfully in Pakistan, working in labouring jobs. He travelled to Iran to work on four occasions, entering Iran overland without a travel document. Twice he left Iran voluntarily and returned to Pakistan, and twice he was deported to Afghanistan;
(d) he married his wife in August 2006 in Quetta, and they have four children together;
(e)the fourth (last) time he was deported to Afghanistan from Iran, in 2010, he decided to go to his family's village in Qarabagh to obtain documents (his father's or father's brother's taskera), and to find a witness in order to apply for a taskera and passport so he could travel lawfully. He travelled from Herat to Qarabagh via Kandahar;
(f)in [Village], he visited the brother of his paternal aunt’s husband, Musa, Ali Khan, to ask for help in obtaining documents relating to his father or Musa. Ali Khan became hostile and kicked him out of his house;
(g)that night he met Ali Zafar, his mother's relative, and learnt that Ali Khan had taken some of his father’s land and local Pashtuns had taken the rest, and that Ali Khan would think that he had come to claim ownership of his father's land. Ali Zafar also suspected that Ali Khan had a link with the Taliban;
(h)the Applicant stayed in Ali Zafar's house that night. During the night some men knocked on the outside gate and shouted in Pashto that they knew his father's son was inside and they wanted him. They shot at the gate, but it stayed shut so they jumped over the wall. The men beat Ali Zafar and threatened to detain him until they found the Applicant. They took Ali Zafar away and searched the house. Ali Zafar's son hid with the Applicant in the hay and then helped the Applicant escape;
(i)Ali Zafar's son helped the Applicant to get to Ghazni, and he then caught a bus to Kandahar, and then travelled to Quetta. He later heard that Ali Zafar had been brutally beaten, his legs broken, and he was threatened further harm if he helped the Applicant or his family again;
(k)two of his sisters reside in Afghanistan (in Mazar e Sharif, and in Kabul) with their husbands, and the rest of his family live illegally in Quetta, Pakistan, and in Iran where they live and work illegally.
In the Applicant’s statement, he claimed:
[38]If I return to Afghanistan I am certain that I will be killed. The Taliban have already killed my uncle and my brother. I believe they also killed my father.
[39]The Taliban also came looking for me on my brief return to Qarabagh. The land my family owns has been taken by the Taliban. I am a person of interest to them because the land is owed legally by my family.
[40]The Taliban also hate Hazaras and are determined to persecute us because of our ethnicity and religion.
[41]I also fears ISIS, which also now has a presence in Afghanistan.
Delegate’s decision
The Delegate overall found the Applicant to be a credible witness, and he accepted his claims as truthful. The Delegate found that the Applicant would face a real chance of persecution if returned to his home region in Ghazni. However, the Delegate was not satisfied that the real chance of persecution related to all areas of Afghanistan, as required under s.5J(1)(c) of the Act. As a result, the Delegate was not satisfied that the Applicant is a refugee as defined by s.5H(1) of the Act.
The Delegate found that the Applicant could safely reside in Kabul, where he would not face a real chance of persecution or a real risk of significant harm in the reasonably foreseeable future from a relative or the relative’s Pashtun/Taliban associates, or from insurgents, including the Taliban and Daesh for reasons of his Hazara race and Shia religion, or because he would be returning after many years spent abroad, including in a western country. The Delegate also found the Applicant’s relocation to Kabul would be reasonable in the circumstances (see Authority’s decision at [2]).
The Authority’s decision
The Authority considered the submissions and materials sent to it by the Applicant and his representative to which I have referred at [3] above. The Authority accepted that there are exceptional circumstances to consider recent information about protests and a peace deal with Hezb‑i‑Islami: decision at [5]‑[6].
Whilst the Applicant in his submission dated 15 May 2016 did not mention any recent death of a relative, in the June submission from his representative, the following was said at page 2 in the context of describing the worsening situation in Afghanistan (bold emphasis added):
· Between paragraphs 88 - 101 (most of the paragraphs in this section of the assessment between pages 22 and 26 have been numbered wrongly), the case officer comes to an illogical conclusion. This section reflects a "cut and paste" job which as advocates we often have to deal with in DIBP decisions. However annoying this may be it is important because it indicates a lack of thought about the most important issues in the whole decision. This is the section which concludes with the case officer deciding that "I am not satisfied that the real chance of persecution relates to all areas of the receiving country as outlined, as required under section 5J(1 )(c) of the Act.
Even DFAT documents a worsening situation in Afghanistan. Slowly the reports are describing the increasing areas of Afghanistan which are not safe for Hazaras. The gains by the Taliban in all areas of the country are getting closer and closer to Kabul. To believe that to be transported into Kabul and remain there will absolve Australia's protection obligations when other parts of the country are considered so unsafe shows remarkable ingenuousness.
Such a conclusion given the recent history of Afghanistan and the massacres of Hazaras, including [the Applicant’s] brother, cousin, father and most recently a more distant family relation, indicates a lack of knowledge of Afghan society and the entrenched hatred of the Hazaras and any gains they may have made under the "protection" of the international troops.
That “most recently a more distant family relation” had been killed as an incident of the “massacres of Hazaras” was information that was not before the Delegate, and was new information within the meaning of s.473DC(1) of the Act. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information. Referring to the June submission, the Authority stated at [9]:
[9]The submission also mentions the massacre of 'most recently a more distant family relation'. This information was not before the delegate and constitutes new information. However, no information has been provided about the incident, or to indicate why the information was not and could not have been provide to the delegate. Nor am I satisfied on the information provided that it is credible personal information. I am also not satisfied that there are exceptional circumstances to justify considering the new information.
Accordingly, the Authority did not consider it.
The Authority accepted most of the claims of the Applicant as to his experiences in Jaghori District. It accepted that he was a Hazara Shia from Afghanistan, who had lived unlawfully and worked in Pakistan and Iran for a period, and that he would be identifiable from his accent as someone who had lived outside of Afghanistan for many years: at [11]‑[12]. It accepted his evidence of his dispute with Ali Khan, and accepted that Mr Khan had taken over his family’s land and given some of the land to some local Pashtuns: at [14]‑[15]. It accepted, based on the credibility of the Applicant’s claims, and country information, that Ali Khan had local Taliban connections: at [17].
The Authority accepted that the Applicant may face a real chance of harm in Qarabagh from Ali Khan and his Pashtun/Taliban associates. The Authority noted, however, that s.5J(1)(c) of the Act required that the real chance of persecution must relate to all areas of a receiving country. The Authority was not satisfied that the Applicant had a real chance of persecution in Kabul.
At [20]‑[22] the Authority said (footnotes omitted):
[20]The applicant claims he will be personally targeted by Ali Khan and his Pashtun and Taliban associates because it will be perceived that he has returned to reclaim his family's land. He also claims he will face discrimination and will be targeted throughout Afghanistan by the Taliban, Daesh and Hezb-i-Islami because he is Hazara Shia and has lived outside Afghanistan for many years, including in a western country. I accept the applicant may face a real chance of harm in Qarabagh from Ali Khan and his Pashtun/Taliban associates, however s.5J(1)(c) of the Act requires that the real chance of persecution must relate to all areas of a receiving country. For the reasons that follow I am not satisfied the applicant faces a real chance of persecution in Kabul.
[21]The applicant claims Ali Khan's Taliban associates will be able to locate him in Kabul through the Hazara community who may obtain economic benefit from alerting the Taliban to his newcomer presence. DFAT stated in 2014 that given Kabul's population growth and diversity, the fact that ethnic groups tend to live homogenously and the absence of a single central address register, new arrivals had a higher level of anonymity in Kabul than in rural areas, particularly if they maintain a low profile. During a fact finding mission to Kabul in 2012, while it was noted that in 2007, 2008 and 2009 the Taliban also targeted low profile people and that in subsequent years they had the means to do so, various sources including UNAMA, UNHCR, AIHRC and IOM all stated the Taliban's activities in Kabul focussed on high profile targets and that they would probably not make it a priority to track down low profile persons, even if they had come to the Taliban's adverse attention in their home region. The country information before me indicates the Taliban have not in recent years focussed their attention on tracking down low profile persons such as the applicant. Additionally I consider the applicant's dispute with Ali Khan is localised, being a dispute over land ownership. The applicant has indicated he does not intend to reclaim the land in [Village]. I accept Ali Khan and his Pashtun/Taliban associates may feel threatened by his claim should the applicant return to [Village] however even noting Ali Khan is Hazara, the information before me does not indicate that Ali Khan has any specific links in the Hazara or other communities in Kabul that would lead him to discover the applicant's presence. I am not satisfied that word of the applicant's return to Kabul would reach Ali Khan or the Taliban. I do not accept the applicant faces a real chance of being sought and harmed by Ali Khan or his associates in Kabul.
[22] While insurgent and criminal violence is common, the government maintains strong effective control over Kabul. Ethnic based violence in Kabul is rare. Purely inter-faith violence across Afghanistan is also rare. Attacks against Shias have occurred in recent years, particularly during significant Shia events. In 2011, over 80 people were killed by a suicide bomb attack at Abu Fazl Mosque during the Shia Ashura commemorations (two other coordinated attacks on Shias occurred in Mazar e Sharif and Kandahar). In 2012 a violent confrontation resulted when a group of Sunni students at Kabul University attempted to prevent Shia students (predominantly Hazaras) from observing Ashura. In February 2014 one security guard was killed in an attack on an Ismaili (Shia) cultural centre. Notwithstanding these incidents, DFAT describes the frequency of attacks on religious facilities as 'occasional' and assesses that Sunni-Shia sectarian violence in Kabul is infrequent. This is consistent with recent reporting from EASO which described the Ismaili cultural centre attack as "... an exception in a conflict that does not, so far, feature the sectarianism associated with the violence in Syria, Iraq or neighbouring Pakistan".
Thus the Authority considered the Applicant’s dispute with Ali Khan to be localised. The Authority was not satisfied that the Applicant faced a real chance of being harmed in Kabul by Ali Khan or his associates. Neither did the Authority accept that there was a real chance that the Applicant would be killed, kidnapped, or otherwise harmed in Kabul by insurgents (including the Taliban) due to his Hazara Shia race and religion: at [22]-[24]. The Authority was not satisfied that Hazara Shias were subject to harassment or discrimination amounting to persecution or significant harm in Kabul: at [28].
The Authority considered whether the Applicant would face harm as a person who had spent time living outside of Afghanistan, but was not satisfied on the basis of country information that he would face such harm: at [33]. The Authority also considered the situation of general violence and civilian attacks in the country: at [35]-[37]. Considered individually and cumulatively, the Authority concluded that it was not satisfied the Applicant had a well-founded fear of persecution in Kabul in the reasonably foreseeable future: at [38].
The Authority then considered whether the Applicant was entitled to complementary protection under s.36(2)(aa) of the Act, but concluded he was not so entitled on the basis that the Applicant could reasonably relocate to Kabul: at [43]‑[50].
Applicant’s grounds of review
The amended application consists of six grounds (referred to as ground 1, ground 2, ground 4, ground 5, ground 6, and ground 7). At the hearing the Applicant solicitor, Mr Tambimuttu, pressed grounds 1, 2, 5 and 7 which are as follows (without alteration, save that bold and underlining are not reproduced. References in the grounds to [CB] are to pages in the Court Book in evidence in which the Authority’s decision is reproduced, followed by the paragraph number in the decision):
Ground 1
The IAA failed to consider whether or there are “exceptional circumstances” outside of matters contained in s473DD (b) (i) and (ii) when considering if there were exceptional circumstances to justify considering the new information [CB 182, 9].
PARTICULARS
(i) The IAA accepted that information of a massacre of the applicant distant family relative that occurred "most recently" [CB 170] was "new information" [CB 182, 9].
(ii)The applicant's representative communicated to the IAA on 6 June 2016 by way of a written submission that a massacre of the applicant distant family relative that occurred "most recently" [CB 170].
(iii)The delegate's decision was made on 29 April 2016 [CB 108], the IAA made its decision on 8 June 2016 [CB 180].
(iv)The IAA when considering if there are exceptional circumstances to justify considering the new information restricted itself to subparas (b )(i) and (ii) and failed to consider that there were exceptional circumstances outside of (b)(i) and (ii). See: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176.
(v)The exceptional circumstances that the IAA failed to consider included,
a.The reason the applicant may not have been able to provide this information to the delegate was because the new information relates to an incident that occurred "most recently" [CB 170].
b.The IAA failed to consider that the incident referred at a. above may have occurred after 29 April 2016 (i.e. after the delegate made his decision).
c.The fact that the massacre of the applicant's distant family member was not an isolated incident, as prior to this incident, the applicant's brother, cousin and father were also massacred [CB 170].
d.The IAA failed to consider that the information of a massacre of the applicant distant family relative that occurred "most recently" was in fact personal credible information on the basis of similar massacres that had occurred.
Ground 2
The IAA failed to apply the real chance test correctly when assessing future harm [CB 185, 21].
PARTICULARS
(i) At [21] the IAA states that "new arrivals had a high level of anonymity in Kabul than in rural areas particularly if they maintain a low profile "[CB 185, 21].
(ii)The IAA accepted that in 2007, 2008 and 2009 the Taliban also targeted low profile people [CB 185, 21].
(iii)The IAA accepted that "in subsequent years" the Taliban "had the means to ..." target low profile people [CB 185, 21].
(iv)The IAA thereafter states "... the Taliban's activities in Kabul focussed on high profile targets and that they would probably not make it a priority to track down low profile persons, even if they had come to the Taliban's adverse attention in their home region"
(v)The IAA accepted that the applicant "would be identifiable as a Hazara Shia by his physical appearance and the Shia mosque he would attend".
(vi)Having accepted that the applicant would be identifiable as a Hazara Shia by his physical appearance and the Shia mosque he would attend and that the Taliban targeted low profile people in the past or had the means to do so, it was not open to then state that "they would probably not make it a priority to track down low profile persons" referring to the applicant, even if the applicant had come to the Taliban's adverse attention in his home region.
(vii)As the IAA has considered the possibility of the applicant coming to the Taliban's adverse attention in his home region, it was not open to then state they would probably not make it a priority to track down low profile persons"
(viii)The fact that the IAA states "they would probably not make it a priority to track down low profile persons" amounts to an implied acceptance by the IAA that the Taliban in Kabul would become aware of the low profile applicant due to the applicant having come to the Taliban's adverse attention in his home region.
(ix)At [22] the IAA referring to country information stated, “... DFAT describes the .frequency of attacks on religious facilities as "occasional" and assess that Sunni-Shia sectarian "violence in Kabul is infrequent".
(x)The IAA erred as it failed to consider if the Applicant faces a real chance of serious harm, instead it applied a different test at [CB 186, 22].
Ground 5
At [21] the IAA's reasoning and expectation that the Applicant could avoid harm, by maintaining a low profile in Kabul is tainted with jurisdictional error.
PARTICULARS
(i) S5J of the Migration Act states that a person does not have "a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would,
a.conflict with a characteristic that is fundamental to the person's identity or conscience; or
b.conceal an innate or immutable characteristic of the person; or
c.without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(ii)At [11] the IAA states,
... I accept the applicant's claims that he would be identified as a Hazara Shia by his physical appearance and the Shia mosque he would attend.
(iii) At [12] the IAA states,
... I accept the applicant may be identifiable from his accent as someone who has lived many years outside of Afghanistan.
Ground 7
The IAA failed to provide new information that was considered by the IAA which falls within the scope of new information that "must" be given to the Applicant under s473DE of the Migration Act.
PARTICULARS
(i) At [CB 182, 6]] the IAA states "As there is no other information before me regarding the protests and the peace deal with Hezbi-i-Islami, I have obtained recent reports regarding these events. I am satisfied that this information is required to properly assess the applicant's claims relating to these issues and therefore there are exceptional circumstances to justify considering the information"
(ii) The description of the reports relied by the IAA could be found at footnote 1 [CB 182, 6].
(iii)Section 473DE (1) of the Migration Act states that the IAA "must" give to the referred applicant any new information if both criterions / limbs are met they are,
a.has been, or is to be, considered by the Authority under section 473DD; and
b.would be the reason, or a part of the reason, for affirming the fast track reviewable decision;
(iv)The information relied upon by the IAA was new information that the IAA did consider [CB 182, 6].
(v)The new information relied upon by the IAA, formed part of the reason for affirming the fast track reviewable decision.
(vi)The IAA failed in its statutory obligation to provide the reports that it had considered as required under s473DE(1) of the Act.
Ground 1
In ground 1 the Applicant contends that the Authority fell into error in failing to consider the existence of exceptional circumstances outside of matters contained in sub-ss.473DD(b)(i) and (ii) of the Act when considering new information that “most recently” the Applicant’s distant relative was massacred as advanced in the June submission.
In oral submissions, Mr Tambimuttu submitted that the ordinary meaning of the phrase “most recently” would be a time period of several months, and that it was possible that the incident occurred after the Delegate made his decision.
The Applicant also submitted that the Authority failed to assess if the new information met the second limb in s.473DD(b)(ii). The Applicant relies on BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 159 ALD 417 as quoted in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 158 ALD 198 at [104]:
As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).
Mr Tambimuttu pointed out that the facts of the deaths of the Applicant’s brother, cousin and father were before the Authority, and in context of the other deaths, the recent death of a more distant relative can constitute an exceptional circumstance within s.473DD(a), and submitted that the information could also constitute credible personal information within the meaning of s.473DD(b)(ii). He submitted that there was a lack of reasoning and a failure by the Authority to consider exceptional circumstances when it had other information before it regarding the other deaths.
The Minister submitted that the Authority's reasoning at [9] discloses that it engaged with both elements of s.473DD(a) and (b). The Authority's conclusion as to exceptional circumstances in s.473DD(a) was informed by its consideration of the matters in section 473DD(b), and was elaborately explained by the Authority: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481; 353 ALR 600, at [65], [75] (Gageler, Keane and Nettle JJ). In the absence of any further detail from the Applicant, the Authority was not in a position to know when this “recent” massacre might have occurred. The Authority was not required to speculate, or to make assumptions.
In oral submissions, Mr Johnson for the Minister submitted that “most recently” means after the last, and can be interpreted to mean the most recent in the line of killings, but this does not place in time when the killing occurred.
He submitted that the question of whether the circumstances are unusual or exceptional is to be understood within the context of whether there is justification for considering the information that has not previously been raised. Mr Johnson submitted that the difficulty with the Applicant’s submission is that the Applicant (through his representative) did not give any detail to the Authority about when the incident occurred, why the incident was not mentioned to the Delegate (if it occurred prior to the Delegate’s decision), or of any exceptional circumstances that might justify its consideration.
As to whether the information can be credible personal information, Mr Johnson submitted that it is for the Applicant to establish that the information is credible personal information, and that no such information was given.
Consideration
Section 473DD of the Act 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.
The requirements in s.473DD(a) and (b) are cumulative – the Authority must not consider new information unless it is satisfied that both subparagraph (a) and subparagraph (b) of s.473DD are satisfied: Plaintiff M174/2016 at [31]; BVZ16 at [9]. If one of those requirements (a) or (b) does not exist, then the Authority must not consider the new information: BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]. The requirements of subparagraphs (i) and (ii) of s.473DD(b), however, are separate, and alternative, limbs of s.473(b), thus, the circumstances that an applicant may not have been able to satisfy subparagraph (b)(i) do not foreclose the applicant being able to satisfy subparagraph (b)(ii).
Whilst the requirements of subparagraphs (a) and (b) are cumulative, they may nevertheless overlap to some extent, with the effect that the Authority’s consideration of either or both of the limbs in subparagraph (b) may inform the Authority’s satisfaction under subparagraph (a) as to whether there are exceptional circumstances to justify considering the new information: see BBS16 at [102]-[103], and see above at [21]. More recently, in DHH16 v Minister for Immigration & Anor [2018] FCCA 1638 at [83] Judge Driver in this Court observed that “The breadth of the phrase “exceptional circumstances” within s.473DD(a) necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances.’”. As his Honour Judge Driver there explained (at [85]), referring to authority, including BBS16, those relevant circumstances may include, but are not limited to, the substance of the matters reflected in subparagraphs (b)(i) and (b)(ii).
The information provided by the June submission was of the death of a “more distant family relation” than the Applicant’s father, brother or cousin, who it appears was a Hazara, the circumstances of whose death was encompassed in the description “the recent history of Afghanistan and the massacres of Hazaras”, and which death occurred “most recently” after the deaths of the Applicant’s father, brother and cousin.
In the context of the paragraph in which the information was conveyed in the June submission, “most recently” places the relative’s death subsequent in time to the deaths of the Applicant’s father, brother and cousin, whose deaths were known to the Delegate. Save for that timing, “most recently” says nothing about when the person died, or why the information was not, and could not have been, provided to the Delegate before his decision. It tells the Authority nothing about whether the information had been known to the Applicant, although not disclosed to the Delegate, and if so, why it could not have been provided to the Delegate.
That the Authority (and the Delegate) accepted that the Applicant’s father, brother and cousin had been killed (prior to about 1997, when the Applicant moved to Quetta, as is apparent from the chronology provided by the Applicant in his claims set out at [5] above), does not lead to a conclusion that the death happened after the Delegate’s decision, nor that there were exceptional circumstances as to why the information could not have been provided to the Delegate. I accept Mr Johnson’s submission that “most recently” means some time after the last time, and that without more detail than was provided, it does not mean that the death happened after the Delegate’s decision, or provided any basis to conclude that the information could not have been provided to the Delegate.
In the third sentence in [9] of its decision, the Authority states that “no information has been provided about the incident, or to indicate why the information was not and could not have been provided to the delegate”. The Authority here is considering and applying the requirements of s.473DD(b)(i), and finding that the Applicant does not satisfy the Authority of those requirements. That the Authority was not satisfied involved an evaluative judgment by it which was explained by the Authority in this sentence, and which I find was open to it on the material (and the lack of information) before it, for the reasons it there gave. No jurisdictional error is disclosed.
The Authority then additionally concluded that “Nor am I satisfied on the information provided that it is credible personal information”. The Authority is here addressing the requirements of subparagraph (b)(ii), in the alternative to subparagraph (b)(i)). This fourth sentence in [9] reveals that the Authority relied on the identified lack of information about the incident to which it referred in the preceding sentence of [9] to conclude that the information did not meet a precondition in subparagraph (b)(ii) - that the information be “credible personal information”. Contrary to the Applicant’s submissions, I consider that the Authority in this sentence did assess whether the information met the second limb of s.473DD(b), and concluded in the circumstances before it - “no information has been provided about the incident” – that it was not satisfied that it was credible personal information.
In Plaintiff M174/2016 the plurality of the High Court said at [33] that personal information which was not previously known encompasses “personal information which, although previously known to the referred applicant, was not previously known to the Minister”. The High Court there held at [34] that all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given by a referred applicant set out in s.473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Delegate or the referred applicant; and (3) had the information been known by either the Delegate or the applicant it may have affected the consideration of the applicant’s claims.
In the present case, the Authority found that the communication to it in the June submission to which it referred in the first sentence in [9], and which it evaluated in the second and third sentence of [9], did not satisfy the Authority of the first of the matters required to satisfy the precondition set out in (b)(ii) which are identified in Plaintiff M174/2016 at [34] - that it was credible personal information. That lack of satisfaction involved an evaluative judgment that I find has been explained by the Authority, which was open to it on the material (and the lack of information) before it, for the reasons it gave in the first part of the third sentence in [9]. No jurisdictional error is disclosed.
Because the requirements of ss.473DD(a) and (b) are cumulative, the Applicant not having satisfied the Authority of the requirements of subparagraph (b)(i) or (b)(ii), as is evident from the third and fourth sentences of [9], the Authority was precluded from considering the information. Contrary to ground 1 (see at [18 ] above), the Authority is not required to additionally consider “whether or [not] there are exceptional circumstances [within subparagraph (a)] outside of the matters contained in subparagraphs (b)(i) and (ii) …” in the present circumstances.
That the Authority in [9] then found, for the same reasons that it had already concluded, on the lack of information before it, that the Applicant did not satisfy the requirement of subparagraph (a) of s.473DD does not disclose jurisdictional error. Ground 1 is not made out.
Ground 2
In ground 2, the Applicant contends that the Authority failed to apply the real chance test correctly when assessing future harm. The Authority’s consideration of this issue is contained in paragraph [20] to [24] of its decision (see in part above at [14]-[15]).
The Applicant points to the Authority’s acceptance at [21] that the Taliban had the means to target low profile persons in subsequent years [after 2009]. The Applicant submits that the Authority then makes a speculative finding when assessing if the Applicant would face future harm on account of his ethnicity and or religion, pointing to the Authority’s statement that "[the Taliban] would probably not make it a priority to track down low profile persons, even if they had come to the Taliban’s adverse attention in their home region" (Applicant’s emphasis). Mr Tambimuttu submits this is not reflective of the correct test being applied when assessing future harm. The real chance test requires the decision maker to assess if the applicant faces a real chance of serious harm.
The Minister submits that the Applicant’s contention is based upon a selective reading of the Authority’s reasoning at [21] , in particular its reference to country information addressing the tendency of the Taliban to target “low profile” individuals. The effect of the Authority’s reasoning was that country information showed that in the past (2007, 2008 and 2009) the Taliban had also targeted low profile people and that in subsequent years it had the means to do so, but other sources stated that the Taliban’s activities in Kabul focussed on high profile targets, as the sentence to which the Applicant drew attention makes clear. Mr Johnson submits that, critically, whilst the Authority made reference at [21] to country information concerning the Taliban generally in Kabul, the question for the Authority in [21] was whether the Applicant would face a real risk of harm from Ali Khan and his associates (some of whom included the Taliban), being the persons the Applicant had claimed will personally target him.
In oral submissions Mr Johnson reiterated that the Authority at [21] is directly answering the Applicant’s claim about the capacity of Mr Khan and his associates to locate the Applicant if he goes to Kabul, rather than a generalised risk from the Taliban. The Authority concluded that the Applicant did not face a real chance of harm from Mr Khan or his associates in Kabul.
Mr Johnson contended that the reference to the Taliban probably not making it a priority to track down low-profile persons is not to be read as part of the actual findings of the Authority. The Authority’s findings at [21] was that the country information indicates that the Taliban have not in recent years focussed their attention on tracking down low profile persons such as the Applicant (emphasis added). That finding was expressed with certainty in the usual way.
Mr Tambimuttu also submits that it was not open to the Authority to infer that the Applicant does not face a real chance of serious harm (at [24]) due to DFAT findings (referred to in the Authority’s finding at [22]) which state that "Sunni-Shia sectarian violence in Kabul is infrequent" or that "Ethnic based violence in Kabul is rare", especially he says, as the Authority accepted that the Applicant would be identifiable as a Hazara Shia due to his physical appearance and the Shia mosque he would attend (at [11]), and due to "attacks against Shias have occurred in recent years, particularly during significant Shia events." (at [22]).
By ground 2 and Mr Tambimuttu’s submissions the Applicant appears to be saying that it is a misapplication of the real chance test for the Authority to make a finding that there would not be a real chance of serious harm in terms of the generalised violence against Hazaras perpetrated by the Taliban if the Applicant was returned to Afghanistan, to Kabul.
Consideration
The ‘real chance’ test requires a chance that is a substantial, as distinct from a remote, chance, or a far‑fetched possibility, of persecution occurring, regardless of whether it is less or more than a 50 per cent chance: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 87 ALR 412 a 389
The Authority considered and assessed future harm if the Applicant returned to Kabul, in respect of the Applicant’s specific claims regarding his dispute with Ali Khan and his associates, and separately, the risk of harm arising from the Applicant’s Hazara race and Shia religion. In each case – at [21], and at [22]-[24], respectively - the Authority had regard to country information, and, I find, made findings that were open to it having regard to that country information. It is apparent from a fair reading of these paragraphs that in so finding, the Authority accepted and had regard to the Applicant’s identity as a Hazara Shia (which it had earlier accepted at [11]).
At [21] the Authority specifically considered his claims that Ali Khan’s Taliban associates will be able to locate him in Kabul, and that he would be sought and harmed by Ali Khan or his associates in Kabul. At [22]‑[24] the Authority then turned to consider and make findings on the Applicant’s chance of harm as a Hazara Shia in Kabul from ethnic based violence and inter-faith violence, having regard to the country information it there identified, and the conclusions it drew from that information. The consideration of the country information and the conclusions it draws from that information is a matter within the Authority’s jurisdiction.
It is clear from a fair reading of [21], and [22]-[24] that it determined whether the chance of harm in each case was a real chance, and in each case concluded that it was not, applying the real chance test correctly. No jurisdictional error is established.
Ground 5
In the fifth ground the Applicant asserts that the Authority erred in its conclusion at [21] that the Applicant could avoid harm by maintaining a low profile, contrary to s.5J of the Act.
The Applicant submits that the Authority states at [21] that the Applicant as a new arrival would have a high level of "anonymity in Kabul" particularly if the applicant maintains a low profile. Mr Tambimuttu submits that the Authority’s reasoning at [21] is inconsistent with s.5J of the Act, and findings made by the Authority at [11] and [12]. He says that the Authority’s findings mean that the Applicant would need to take reasonable steps to modify his behaviour so as to maintain a high level of anonymity in Kabul. As a physically identifiable Hazara Shia, and identifiable from his accent as a person who has lived outside Afghanistan for many years, this then raises the question whether such a low profile is in fact maintainable, which is also contrary to s.5J.
Mr Johnson submits that the Applicant’s complaint is based upon a misreading of the Authority’s findings at [21]. The reference to individuals who migrate to Kabul maintaining a low profile was not a finding by the Authority, but content of a DFAT country information report, as is apparent from the first words of the second sentence at [21], and the footnote reference. He submits that in any event, even the country information report did not suggest that only new arrivals to Kabul who maintain a low profile would avoid harm, but that new arrivals had a higher level of anonymity in Kabul than in rural areas, particularly if they maintain a low profile (Minister’s emphasis). The Authority did not find that the Applicant would need to maintain a low profile in order to avoid harm from Ali Khan and his associates. Further, the Applicant did not advance any claim that he had a ‘high profile’ as a Hazara Shia.
Consideration
Pursuant to s.5J(3) of the Act:
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
The Authority found at [21] that the Applicant was a person of low profile: “The country information before me indicates the Taliban have not in recent years focussed their attention on tracking down low profile persons such as the applicant”. As the Minister stated, the Authority found that the Applicant is a person of low profile, not that the Applicant was a person who needed to maintain a low profile in Kabul in order to stay safe, whether from the Taliban or Ali Khan or his associates. The Applicant’s submission misrepresents the Authority’s finding, and its preceding reference to country information as to the higher level of anonymity afforded people in Kabul, than in rural areas.
Pursuant to s.5J, a person can be expected to take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution. The Applicant has not pointed to any characteristic fundamental to his identity or conscience, or any immutable or innate characteristics that the Applicant is required to modify to maintain a low profile.
For the above reasons I conclude that the Authority did not err. Ground 5 is not made out.
Ground 7
In the seventh ground the Applicant contends that the Authority failed to provide new information to the Applicant as required under s.473DE of the Act.
Section 473DE of the Act provides:
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
In oral submissions, Mr Tambimuttu referred to the Authority’s decision at [5] and [6] (reproduced without footnotes) :
[5] To support his claims that the government is discriminating against Hazaras, the applicant referred in that submission to a dispute between the government and the Hazara community over the TUTAP energy initiative. He also stated that the government's negotiation of a peace deal with Hezb-i-lslami had renewed fears in the Hazara community that the group will resume killing Hazaras. While the TUTAP dispute, and the negotiations have been ongoing for months and pre-date the delegate's decision, country information confirms that after the delegate's decision, on 12 May 2016 and 16 May 2016, heated protests were held in London and Kabul respectively, by (mainly Hazara) opponents of the current TUTAP energy initiative, and that a preliminary peace agreement with Hezb-i-lslami was signed after the submission was provided. Given these developments post-date the delegate's decision I am satisfied they could not have been raised with the delegate prior to his decision. As the information relates to the applicant's fear that as a Hazara he will be targeted by insurgent groups I am satisfied that this information may be relevant to the applicant's claims. Given the currency of this information and the fluidity of the situation in Afghanistan and the relevance to the applicant's claims, I am satisfied there are exceptional circumstances to justify considering this new information.
[6] As there is no other information before me regarding the protests and the peace deal with Hezb-i-lslami, I have obtained recent reports regarding these events. I am satisfied that this information is required to property assess the applicant's claims relating to these issues and therefore there are exceptional circumstances to justify considering the information.
Mr Tambimuttu submitted that if the Authority considers certain information to be relevant and considers it to be a part of the reason, or the reason to affirming a fast track decision it must give to the referred applicant particulars of the new information. He argued that s.473DE(3)(a) is a two limb test. One limb is that the information is not specifically about the Applicant, and the second limb is that the information is just about a class of persons of which the Applicant is a member. He argues that information must satisfy both limbs of the test before the information can be excluded from the operation of s.473DE(1), and that the second limb is not met because the Applicant never claimed that he was a member of the global protests initiated by TUTAP, or any of those global protests as referred to in the information obtained by the Authority. Accordingly the Authority should have provided, but did not provide, the information to the Applicant for comment.
Mr Johnson submitted that subsection (3) makes clear that s.473DE(1) does not apply to information that is not specifically about the Applicant, there is no two limb test. Subsection (3) is in similar terms to the exception to s.424A(1) contained in s.424A(3)(a), the meaning of which was considered in Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36; (2008) 166 FCR 298 at [19]. Information such as country information – or information of a similar kind to country information – does not attract disclosure obligations under s.473DE(1). The reports referred to by the Authority at [6] were clearly in the nature of general information not about the Applicant himself, but about the protests and the peace deal with Hezb-i-Islami.
In SZHXF at [19] the Court said (references omitted):
In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information” is “just about a class of persons of which the applicant or other person is a member”. The Full Court observed in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs that the reference to the “class of persons” in s 424A(3)(a) “is not another criterion to be met”. Rather, the reference “is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”.
SZHXF is in relation to s.424A of the Act. In SZTYD v Minister for Immigration & Anor [2017] FCCA 1472 at [89] the Court held that s.473DE(3) of the Act is a cognate provision to s.424A(3)(a) of the Act “given the similar language used in both sections, and the similar role played by each in their respective statutory context”; and see also at [102]. I agree.
Authorities such as the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526, at [84], [144]-[145]; and the Federal Court in ADE17 v Minister for Immigration and Border Protection [2018] FCA 282 at [17], provide that information not specifically about the Applicant and which is just about a class of persons of which the Applicant is a member is excluded by s.473DE(3)(a) from s.473DE(1).
I reject the Applicant’s submission. The first sentences of the Authority’s decision at [5] record that that the Applicant had raised concerns before the Delegate about a dispute between the government and the Hazara community over the TUTAP energy initiative, and the peace deal with the Hezb‑i‑Islami, and about the consequences of those matters for the Hazara community. It is clear from the Authority’s discussion at [5] and [6] that the reports it obtained are in the nature of general information about developments that had occurred relating to the dispute and the peace deal negotiations to which the Applicant had referred before the Delegate, and further to which he had expressed the fear “that as a Hazara he will be targeted by insurgent groups”. That the Applicant never claimed that he was a member of the global protests initiated by TUTAP, or any of the global protests referred to in the information obtained by the Authority, does not exclude the information from being new information that comes within information of the sort governed by s.473DE(3)(a).
The Authority referred to the information because of the matters described in the last two sentences of [5] including the Applicant’s fear “that as a Hazara he will be targeted”. It is apparent from the Authority’s discussion at [6], and the corresponding footnote, that the information was country information of the sort governed by s.473DE(3)(a) of the Act. As the Court in SZHXF makes clear in relation to the cognate provision of s.424A(3)(a), and as the authorities to which I have referred above confirm, s.473DE(3)(a) operates to exclude such information from the operation of s.473DE(1) of the Act. Such information does not have to be given to an applicant. The Authority did not fall into jurisdictional error at [5] and [6] of its decision. Ground 7 is not made out.
Conclusion
I have concluded that none of the grounds of the amended application pressed by the Applicant are made out. It follows that the Application should be dismissed, with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 4 July 2019
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