BSL17 v Minister for Immigration

[2018] FCCA 2583

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2583

Catchwords:
MIGRATION – Application for SHEV – application for review of decision of Immigration Assessment Authority – where it was not established that the applicant would be targeted or persecuted if he relocated – modification of behaviour - where IAA appropriately considered the applicant’s reunification with his family – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5J(1)(c), 5J(3), 36(2)(a), 36(2)(aa), 473BV, 473CA.

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

BNB16 v Minister for Immigration and Border Protection [2017] 253 FCR 448
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: BSL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 361 of 2017

Judgment of: Judge Egan

Hearing date: 5 September 2018

Date of Last Submission: 5 September 2018

Delivered at: Brisbane

Delivered on: 5 September 2018

REPRESENTATION

Counsel for the Applicant: Mr L Burrow

Solicitors for the Applicant: Arc Migration

Counsel for the Respondents: Mr B McGlade

Solicitors for the Respondents: MinterEllison

ORDERS

1. That the Amended Application filed on 15 January 2018 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of seven thousand dollars ($7,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 361 of 2017

BSL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan who travelled to Australia by boat from Indonesia, arriving at Christmas Island on or about 27 August 2012. On 10 November 2015, the applicant applied for a Safe Haven Enterprise Visa (SHEV). On 11 October 2016, a delegate of the minister refused to grant the applicant a SHEV. The delegate’s decision was a fast track reviewable decision within the meaning of section 473BV of the Migration Act1958 (Cth) (“the Act”) and on 24 October 2016 the minister referred the delegate’s decision to the Immigration Assessment Authority for review pursuant to the provisions of section 473CA of the Act.

2. On 28 March 2017, the Immigration Assessment Authority (“IAA”) affirmed the decision under review by an application filed on 21 April 2017, and as amended on 15 January 2018, made pursuant to the provisions of section 476 of the Migration Act. The applicant sought judicial review of the decision of the IAA dated 28 March 2017.

3. The applicant was accepted by the IAA as having been born at a place called Jaghori, a district in the Ghazni province of Afghanistan.  The applicant claimed that he feared that he would be targeted by local Taliban and powerful local Hazara people with Taliban links should he be returned to Afghanistan.  The applicant asserted that he would be perceived as a government supporter due to his actions in having captured and handed over Taliban sympathisers to the Afghan army at a military base in 2012.  The applicant asserted that in June 2012 he and some passengers in a motor vehicle were detained by armed men who he thought initially were criminals, but who he found out later were linked to the Taliban, one of whom was a Hazara.  The applicant asserted that he had been detained on the road by the Taliban, and that he had a genuine fear arising out of his having detained and handed over such Taliban to the authorities. 

4. It was recorded in paragraph [15] of the reasons of the IAA that country information in 2014 reported high levels of insecurity on the roads in districts where the Taliban and other insurgent groups were present, including in Ghazni.  It was recorded, however, that local residents with ties to the province and knowledge of the area, including Hazaras, were generally able to travel between Ghazni city and Hazara districts without incident.  The applicant’s claim that he had been forced to stop at a road blockage was consistent with that country information.  The applicant claimed that he had been threatened over the telephone by someone claiming to be calling on behalf of the Taliban and by an associate of the influential local Hazara, and that associates of that Hazara had gone looking for the applicant in his village.  The IAA found, on the basis of relevant country information, that there was a real chance that the applicant would be targeted by the Taliban through the local Hazara and his associates in Jaghori due to the incident in 2012. 

5. The IAA accepted that applicant faced a well-founded fear of persecution as a Shia Hazara on surrounding roads leading to Jhagori if he were to attempt to return there. That was based on DFAT country information related to country conditions in and about the Jhagori area as at September 2016. Notwithstanding those findings by the IAA, one must have regard to the provisions of section 5J of the Act which provision provides as follows:

   Meaning of well-founded fear of persecution

   (1)  For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)  the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)  there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)  the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)  A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)  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.

   (4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)  the persecution must involve serious harm to the person; and

   (c) the persecution must involve systematic and discriminatory conduct.

   (5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)  a threat to the person's life or liberty;

   (b)  significant physical harassment of the person;

   (c)  significant physical ill-treatment of the person;

   (d)  significant economic hardship that threatens the person's capacity to subsist;

   (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

   (6)  In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

6. Relevantly, section 5J(1)(c) provides that a person will have a “well-founded fear of persecution” if the real chance of persecution related to all areas of a receiving country. In that regard, at paragraph [20]-[31] inclusive of the reasons of the IAA, the authority dealt with the issue of relocation and modification of behaviour which the applicant could undertake so as to avoid a real chance of persecution should he be returned to Afghanistan. In that regard, although it was accepted by the IAA that the applicant had a well-founded fear of harm from the local Hazara and the Taliban in Jaghori, the IAA, after considering all of the evidence before it, found that there was only a remote possibility that the Taliban or local powerful Hazara would learn of the applicant’s presence, and thereafter pursue the applicant, should the applicant relocate to the town of Mazar-e-Sharif, which was described as being a large urban area with a large population of mixed ethnicity where the applicant’s background was not known, and which was said to be remote from Jaghori. The IAA found that the applicant did not face a real chance of serious harm as a result of his handing over two Taliban members in 2012 should he live and work in Mazar-e-Sharif (see reasons at [23]).

7. At [25] of the reasons, the IAA accepted that the applicant would resume taxi driving should he relocate to Mazar-e-Sharif. Mazar-e-Sharif was found to be one of the biggest commercial and financial centres in Afghanistan which offered greater opportunities for employment than rural areas such as Jaghori. The IAA also found that, due to the size of the city, the applicant would not need to travel outside of the city to contested areas where his identity might be disclosed. In that context, at [26] of the reasons, the IAA confirmed that it had considered whether the applicant could take reasonable steps to modify his behaviour under section 5J(3) of the Act by not travelling through contested areas outside Mazar-e-Sharif so as to avoid the real chance of prosecution. The IAA found that the applicant could avoid a real chance of prosecution by not travelling through those contested areas, and that that behaviour modification was not one prohibited pursuant to any of the subparagraphs of section 5J(3) of the Act.

8. It was submitted by counsel on behalf of the first respondent that one does not need to consider section 5J(3) of the Act – and therefore any possible modification on behaviour on the part of an applicant – should it not be accepted that there was a real chance of persecution. It was relevantly found that there was not a real chance of persecution relating to all areas of the receiving country, as provided for in section 5J(1)(c) of the Act. The court is rather of the view that 5J(1) and 5J(3) can operate independently in circumstances such as the present where, as found by the IAA, the relocation by the applicant to the town of Mazar-e-Sharif would not give rise to a real chance of persecution.

9. Additionally, the IAA found that, whilst any modification of the applicant’s behaviour by his living in Mazar-e-Sharif might impact upon him financially, the applicant was possessed of other skills and experience upon which he could rely to secure or supplement income and thereby avoid persecution.  Reference in that regard was made to the applicant’s experience in the construction industry, as a shop owner and as a taxi driver. 

10. The IAA also found at [35] of the reasons that, based on country information, failed asylum seekers/returnees who had lived in a western country for a significant period of time were not targeted in Mazar-e-Sharif by insurgents, or that the applicant would otherwise be targeted on any return to Mazar-e-Sharif due to his being a Shia Hazara returnee/failed asylum seeker, even if that meant that he had had imputed to him some pro-western political opinions.  In that regard also, reference is made to the decision of the Full Court of the Federal Court of Australia in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”).  At [18] of the joint judgment of Collier, McKerracher and Banks-Smith JJ, their Honours enunciated the matters which affected the obligations on the part of tribunals to consider claims and issues before them.  Their Honours referred to the case of BNB16 v Minister for Immigration and Border Protection [2017] 253 FCR 448, a decision of Dowsett, Besanko and Charlesworth JJ. Paragraph [18] of AYY17 provides as follows:

    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration & Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    The Tribunal is only required to consider such claims where they are either:

    (a)  the subject of substantial clearly articulated argument, relying on established facts; or

    (b)  clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).

    These principles apply to the IAA regime: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

    … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]–[61] per Black CJ, French and Selway JJ).

    (Emphasis added.)

    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):

    (a)  such a finding is not to be made lightly (NABE at [68]);

    (b)  the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    (c)  to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:

    37  While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    38  Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    (d)  while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

    (e)  understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

11. It is noted that on the question of whether a claim is held to have clearly emerged or not, it must first be found that such claim was based on “established facts”.  In this case, it is not an established fact that the applicant would be targeted by, or persecuted by, members of Hazara or the Taliban should he relocate to Mazar-e-Sharif and involve himself in a large community by reason of his having participated in an activity involving Taliban sympathisers back in 2012.  Accordingly, ground 1 of the amended application for review has not been made out, nor has ground 2. 

12. The further argument advanced by counsel on behalf of the applicant was that the IAA ought to have considered section 5J of the Act in the context of the applicant having expressed a desire to protect his family, if he were returned to Afghanistan, in circumstances where if he was to return to his wife and children in Jhagori, he might be targeted by the Taliban and Hazara. That submission is of no substance if one considers that by living in a place other than one where the applicant is likely to suffer serious harm should he return there, the applicant would not suffer any such harm. That place, conveniently identified, is Mazar-e-Sharif.

13. It has not been established that the IAA did not appropriately consider the question of reunification with the applicant’s family as a part of its consideration of the issue of the applicant relocating to a safe place.  The assumption on the part of the IAA was no doubt that if the family was to be reunited as a family unit, after a substantial period of dislocation caused by the applicant’s travel to Australia, the applicant would somehow arrange for his family to be safely brought to him rather than him undertaking a possibly hazardous excursion to his family. 

14. The IAA found that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act and, further, that he did not meet the criteria set out in section 36(2)(a) of the Act. In doing so, it did not fall into any jurisdictional error. The IAA also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, that there was a real risk that the applicant will suffer significant harm. It was found that the applicant had not met the criteria set out in section 36(2)(aa) of the Act. The IAA, at [38] – [54] of the reasons, dealt with complementary protection assessment considerations in a thorough and proper manner.

15. It has not been established that the IAA has arrived at its decisions in circumstances where it could be said that “no rational or logical decision maker could arrive (at the decision) on the same evidence” (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611) or that the IAA had acted unreasonably “in the sense that the finding lacked an evident and intelligible justification” (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332). It has not been established that the IAA fell into any jurisdictional error.

1. The application for review is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018