BTH17 v Minister for Immigration
[2018] FCCA 1334
•24 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTH17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1334 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered all material forwarded by Secretary – whether Authority considered all integers of applicant’s claim. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473CB, 473DB |
| Cases cited: AKK17 v Minister for Immigration [2017] FCCA 2486 Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 |
| Applicant: | BTH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 366 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 March 2018 |
| Date of Last Submission: | 9 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 24 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Stolar Law |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 14 November 2017 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 366 of 2017
| BTH17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
On 1 October, 2012 the applicant arrived in Australia by boat. For the purposes of the Migration Act 1958 (Cth) he is considered to be an unauthorised maritime arrival.
At the invitation of the first respondent, on 26 February, 2016 the applicant applied for a Safe Haven Enterprise (Subclass 785) visa. That visa is a type of protection visa and to secure its grant, the applicant needed to establish (amongst other things) that at the time of the decision he met either the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
The applicant, however, was unable to do that to the satisfaction of a delegate of the first respondent and on 11 October, 2016 his visa application was refused. The delegate’s decision was a fast track decision for the purposes of the Act. Accordingly, on 18 October, 2016 the first respondent referred the delegate’s decision to the second respondent in accordance with s.473CA of the Act.
On 22 March, 2017 the second respondent affirmed the delegate’s decision.
On 24 April, 2017 the applicant applied to this Court for orders quashing the second respondent’s decision and for the issue of a writ of mandamus, directed to the second respondent, requiring it to re-determine the matter according to law. Initially he relied upon two grounds to support his application. First, he contended that the first respondent’s Secretary failed to give the second respondent all relevant documents required by s.473CB of the Act and that the “review” required by s.473DB of the Act thereby miscarried. Second, he claimed that the second respondent’s “review” miscarried because it failed to deal with an essential integer of the applicant’s claim for protection.
The applicant’s first ground was based upon a misapprehension of fact which was clarified by evidence from the first respondent filed in these proceedings. The factual basis for the argument that the first respondent’s Secretary failed to give the second respondent all relevant documents required by s.473CB, the applicant accepts, cannot be made out and accordingly he now abandons that argument.
However, he presses the second aspect of his first ground of review – that the “review” required by s.473DB of the Act miscarried. He also presses the second ground of review. The first respondent opposes the application. The second respondent has entered a submitting appearance.
Background
The applicant is a national of Afghanistan. He is 35 years old and has not lived in Afghanistan since he was nine years old. He has lived mostly in Pakistan and Kuwait.
His visa application was based upon the following claims:
a)he was of Shia religion and Hazara ethnicity;
b)in May, 2012 he was travelling in a van to Ghazni with others (another Hazara man and two Pashtuns);
c)the van was stopped by an armed group who appeared to be Taliban members;
d)the Taliban let the two Pashtun men go, however, they singled out the applicant and the other member of the van who was a Hazara (because they were identifiable Hazaras) and took them to an area where there were other Taliban and questioned them;
e)during that questioning, the Taliban looked closely at the applicant’s passport and tore the bio data page from it;
f)the applicant and the other Hazara man were then taken to a dwelling where they were locked up. Later that night they heard gunfire and were concerned that they would be killed – so they managed to open a back door in the dwelling and escape; and
g)the applicant claimed to fear returning to Afghanistan because he would be harmed by the Taliban on account of the fact that he was a Shia Hazara that had returned from a western country and who had characteristics (language, accent, demeanour and appearance) that would make him easily identifiable as a foreigner.
The second respondent accepted that the applicant was a Shia Hazara and that he was involved in the claimed incident with the Taliban. It also accepted that the applicant was a returnee from a western country who had been out of Afghanistan for a lengthy period of his life. It found that after a lengthy absence he no longer has any ties to the area and that Ghazni is no longer his home area.
The second respondent accepted that the applicant was kidnapped while travelling to Kandahar from Kabul via Ghazni when the van he was in was stopped on the Kabul-Ghazni road and he and another Hazara passenger were detained. The second respondent did not find that the kidnappers were Taliban. It described the identity of the kidnappers as “uncertain”.
The second respondent then observed:
15. Although I accept that the applicant was kidnapped on the roads initially because he was Hazara and managed to escape I do not accept that this indicates that the applicant has a well- founded fear of harm as a Shia Hazara in Mazar-e-Sharif itself which is a city he can safely access by air.
The second respondent then proceeded to analyse the risk of harm to the applicant in Mazar-e-Sharif and continued (footnotes omitted):
20. …Whilst I accept the representative’s submission that Shia Hazaras have historically been persecuted, there has been an evolution in the Taliban’s ideology in recent years and the Taliban according to Afghanistan Analysts Network has convincingly spoken out against sectarianism in recent times and stayed away from violence that could stir sectarian hatred. I accept that the October attack near Mazar-e-Sharif targeted Shia worshippers, however I am not satisfied that the evidence indicates that IS, IMU or the Taliban were involved or that the incident is indicative of the onset of a sectarian campaign in Balkh. Nor am I satisfied that it is indicative of a risk to Shia Hazaras living in Mazar-e-Sharif itself. I am not satisfied that the isolated incidents in or near Mazar-e-Sharif in 2011 and 2016 indicate that the applicant faces a real chance of persecution as a Shia Hazara upon return to Mazar-e-Sharif in the reasonably foreseeable future.
The second respondent then analysed the applicant’s claim based upon him being a returnee from the west and a person who has spent considerable time outside of Afghanistan and continued:
23. I am not satisfied on the evidence that returnees like the applicant who have lived in Pakistan or worked overseas in countries such as Kuwait for a significant period of time, and in a western country are targeted in Mazar-e-Sharif by insurgents or that the applicant would be targeted on return to Mazar-e-Sharif as a Shia Hazara returnee with an imputed pro-Western political opinion. The applicant does not have affiliations with international organisations or the Afghan government which would raise his profile in Mazar-e-Sharif and lead to him being specifically targeted by insurgents for a pro-Western political opinion. I am not satisfied that he would be imputed with an adverse political opinion in Mazar-e-Sharif, as a Hazara Shia who resided in Pakistan, Kuwait or in a western country.
24. I am not satisfied that the applicant faces a real chance of harm upon return to Mazar-e-Sharif, which he can safely access by air, as a Shia Hazara or as a returnee from the west who has lived most of his life in Pakistan and Kuwait. Moreover, given the applicant is in regular contact with his family in Pakistan via the internet, and has no family in other parts of Afghanistan I consider that he would not be required to travel outside Mazar-e-Sharif, and that it could reasonably be expected that he remain in Mazar-e-Sharif and not travel outside it, where he would be able to safely access employment relevant to his skills.
The second respondent determined that the applicant was not entitled to protection pursuant to s.36(2)(a) of the Act.
The second respondent then considered the applicant’s claims to complementary protection. As I have set out above it did not consider that Ghazni was the applicant’s home area and thought that if the applicant returned to Mazar-e-Sharif he would not be exposed to a real risk of significant harm. The second respondent recorded:
31. I am not satisfied that there is a real risk of the applicant suffering significant harm on return to Mazar-e-Sharif. As noted above, given the applicant’s long term absence from Ghazni and the lack of any ties to this area, I do not consider Ghazni to be his home area. However even if it were to still be regarded as his home area, and even if it could be said that he faces a real risk of significant harm there, I consider it would be reasonable for him to relocate to Mazar-e- Sharif, pursuant to s.36(2B) of the Act.
The second respondent considered the reasonableness and practicality of the applicant relocating to Mazar-e-Sharif and concluded:
38. As has been noted above, general violence in Mazar-e-Sharif is sporadic. Taking into account this, the country information relating to the situation in Mazar-e-Sharif and the applicant’s personal circumstances, I find it reasonable for the applicant to relocate to Mazar-e-Sharif where he does not face a real risk of significant harm
In the premises, the second respondent affirmed the delegate’s decision.
The grounds of review
The applicant argues that the second respondent did not properly conduct the “review” required by the Act because it failed to consider all of the “review material” as required by s.473DB(1) of the Act. The material said not to have been considered is:
a)A document referred to as “CX325663: ‘17 Hazaras beheaded by Taliban in Gizab, Afghanistan’, Hazara.net, 7 July 2014”. This was an article reporting that “within a period of two days, Taliban have beheaded 17 Hazara on the road between Gizab and Daikundi”. Witnesses were reported to have described the Taliban “in Police dress” taking the Hazaras from “District Gezab” and then: “tied their hands, chopped off their ears, noses, hands, then beheaded them”. The article also noted a member of parliament stating “that there has been an increased trend of Hazaras pulled out of buses by Taliban and massacred on the roadside”.
b)A document referred to as “CX325141: ‘Gunmen Execute 15 Minority Shia Muslims in Afghanistan’, The Wall Street Journal, 25 July 2014”. This was an article reporting that “Gunmen in central Afghanistan executed 15 civilians belonging to the Shiite Muslim minority”. The article stated that “armed men stopped three minibuses”, then “separated the ethnic Hazaras from the group and killed them on the side of the road”. The article also noted a recent “car bomb” that “exploded in the bazaar of a town in eastern Afghanistan, killing as many as 89 people”.
The first respondent’s delegate referred to these two documents to support a finding that “Various sources confirm attacks on Hazara including a number of notable incidents of targeted attacks on Hazaras in Afghanistan in 2014”.
By s.473CB(1) of the Act the Secretary of the first respondent’s department is obliged to give certain material specified in that subsection to the second respondent. However, the evidence before me makes it clear that some documents are maintained in an electronic format on an electronic database known as CISNET. Where material exists on that database, physical copies of the documents are not transmitted to the second respondent, but access is permitted and facilitated to the documents on the database.
The evidence establishes that the second respondent accessed the CISNET database on various occasions prior to making its decision on 22 March, 2017 but the first respondent’s evidence is not able to identify which documents within CISNET the second respondent accessed.
The applicant argues that although there is some evidence that the second respondent did in fact consider the relevant documents, I must draw an inference that the second respondent in fact accessed the relevant documents because there is no direct evidence to that effect. He acknowledges that the second respondent, in its statement of reasons, said: “I have had regard to the material referred by the Secretary under s.473CB”. “[P]roperly authenticated statement of reasons” may be accepted as “evidence of the truth of what it says, namely, that the findings made, the evidence referred to and the reasons set out were those actually made, referred to and relied upon”: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 (per French J at 179). In my view, the second respondent’s statement to which I have just referred is direct evidence that the second respondent referred to the relevant documents.
However, the applicant argues that there is also evidence to support an inference that the second respondent failed to consider the documents in question. For example:
a)the second respondent did not mention the documents or their content anywhere in its statement of reasons, nor did it make any finding to the same effect as those made by the delegate based upon the relevant documents;
b)in contrast, the second respondent referred to all of the country information relied upon by the first respondent’s delegate other than the relevant documents, including giving detailed footnotes of the title, date, and reference number of each document;
c)the second respondent was not given any index of material that specified the relevant documents, so the only way in which the second respondent could have known that the relevant documents formed part of the “review material” was to identify the footnote reference to those documents on the sixth page of the delegate’s decision. Those articles contained within the relevant documents were listed only once in the delegate’s decision in the same footnote; and
d)the second respondent was not provided with a hard-copy of the relevant documents. Thus, the only way the second respondent might have accessed them was via the CISNET database. There is no evidence that the second respondent in fact accessed the documents in that database (as opposed to evidence that the second respondent accessed the database generally).
As the applicant points out, it is well established that a decision-maker’s assertion of having taken some matter into account is not determinative. It is for the Court itself to resolve the question in light of all relevant evidence.
The applicant submits that on a fair reading of the second respondent’s statement of reasons, the more likely inference to be drawn is that the second respondent overlooked the relevant documents or otherwise inadvertently failed to consider them.
However, the first respondent points out:
a)the applicant bears the onus of establishing that evidence was not considered;
b)in the context of asserting that evidence was overlooked, discharging such an onus is difficult in circumstances where:
i)to “consider” evidence, all a decision-maker is required to do is be mindful of such evidence;
ii)the second respondent, however, is not required to set out in its reasons all the matters that it considered or to which it turned its mind. The second respondent’s reasons are only required to set out the evidence on which its findings on material questions of fact were based. The second respondent is not required to set out all the evidence before it or provide reasons for the weight it attributed to each piece of evidence; and
iii)accordingly, inferring that the second respondent has overlooked evidence that it was not required to refer to in its statement of reasons is not something that should be lightly done;
c)where the second respondent does not refer to a piece of evidence in its reasons, the appropriate inference to draw is that the second respondent did not consider that evidence to be material in the sense that its findings of fact were not, in fact, based on that material; and
d)here the nature of evidence allegedly overlooked is objectively of little materiality in the context of the decision and reasons given. The proper inference to draw is that the second respondent considered such material but attributed little or no weight to such material.
The first respondent contends that in this case, the evidence supports the view that the second respondent did consider the relevant documents. In this regard:
a)the second respondent expressly stipulated that it “had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958”. The first respondent argues that statement ought to be accepted at face value; and
b)the second respondent made findings consistent with the information contained within the relevant documents
Further, the first respondent argues that even if the relevant documents were overlooked, that would not result in the second respondent’s decision being affected by jurisdictional error because despite the terms of s.473DB(1) of the Act, the second respondent is not required to consider every document provided to it. In AKK17 v Minister for Immigration [2017] FCCA 2486 Judge Driver said (footnotes omitted):
60. I accept that the Authority is not required to consider every document provided to it as a pre-condition to exercising its decision making powers.[52] Section 473DB(1) requires the Authority to review a decision referred to it under s.473CA “by considering the review material provided to it under s.473CB”. If a document is omitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant and material to the outcome of the review, its omission may well disable the review function.
I am satisfied, and I find, that the second respondent did in fact consider the documents which he argues were not likely to have been considered by it. I am satisfied of that on the balance of probabilities because the second respondent expressly said that it had considered the material referred to it by the Secretary. More than that, the second respondent made findings that were consistent with the material contained in the articles. In that respect, the purport of the articles was that in the areas identified in them, ethnic Hazaras were at risk of being detained and killed by Taliban while travelling. The second respondent accepted that there was such a risk because it accepted that the applicant had in fact been kidnapped. However, to be satisfied that the applicant had a well-founded fear of persecution the second respondent needed to be satisfied that the real chance of persecution related to all areas of Afghanistan. The second respondent directed its attention to that issue when it considered whether there was a risk of harm (both specifically in terms of kidnapping and being killed by the Taliban) and more generally if the applicant returned to Mazar-e-Sharif.
Because of the way in which the second respondent approached the consideration of the applicant’s claims and given its acceptance of the risk of harm to him by reason of his Hazara ethnicity should he be travelling through various areas of Afghanistan, direct reference to the relevant documents was not necessary. The focus of the second respondent’s reasons was upon the existence of harm to ethnic Hazaras in Mazar-e-Sharif, having regard to the risks to Hazaras identified as existing in other areas of Afghanistan.
The applicant submits that, assuming that the second respondent did not consider the relevant documents, had it done so it might have reached the same finding of fact as the delegate, namely that there had been notable targeted attacks on Hazaras in Afghanistan in 2014. He argues that a “finding to that effect was at least capable of affecting the assessment of the risks faced by the applicant and the overall safety of Mazar-e-Sharif (noting that the Second Respondent referred to that city’s safety in relative terms: “one of the safest cities in Afghanistan”.” But that argument pays no attention to the second respondent’s reasons and the analysis carried out by the second respondent to determine if, on the material before it, the applicant was at risk in Mazar-e-Sharif because of his Hazara ethnicity. The second respondent had accepted that the applicant had been the subject of a targeted kidnapping because of his Hazara ethnicity. Further findings about targeted attacks outside of Mazar-e-Sharif were unnecessary.
In my view, this ground reveals no jurisdictional error.
Ground Two
As to this ground, the applicant argues that the material before the second respondent gave rise to a clearly articulated claim that the applicant was at risk not merely as a person returning to Afghanistan, but as a person returning from a western country as a failed asylum seeker who had previously come to the attention of the Taliban (or similar group) in Afghanistan because he was an identifiable Hazara. The applicant argues that the second respondent failed to deal with or address that claim even though it was clearly and sufficiently apparent on the face of the material before the second respondent and notwithstanding that he did not articulate it expressly in those terms.
The applicant points out that the following circumstances were clearly articulated as part of the applicant’s claim:
a)the applicant was an ethnic Hazara and a Shia Muslim;
b)the applicant had been kidnapped by the Taliban or some other armed group in Afghanistan in about May, 2012 because of his status as a Shia Hazara;
c)the applicant managed to escape from the kidnappers’ custody; and
d)if returned to Afghanistan, the applicant would be easily identifiable as a Shia Hazara who had not lived in Afghanistan for a considerable period and had no networks or family in Afghanistan.
He argues that what the second respondent failed to do was to consider whether the fact that the applicant had previously come to the attention of the Taliban or similar group, combined with the other relevant circumstances such as his passport having been interfered with, gave rise to a well-founded fear of persecution (or a real risk of significant harm). He argues the second respondent’s statement of reasons reveals that:
a)it considered the general factual aspects of the applicant’s claim that he had been kidnapped in May, 2012 and accepted those facts (albeit remaining uncertain as to the “identity and motivations of the kidnappers”);
b)when summarising the applicant’s case, the second respondent recorded that his claim was that “the Taliban looked closely at the applicant’s passport and tore the bio data page of his passport”. However, when considering the factual aspects of the kidnapping the second respondent did not mention the kidnappers looking at the applicant’s passport. It said only that the applicant was “questioned” by the kidnappers; and
c)it made no finding about whether the kidnappers had indeed “looked closely” at the applicant’s passport, or whether they had “asked questions regarding identity” as claimed by the applicant.
The second respondent concluded its discussion of the kidnapping incident as follows:
Although I accept that the applicant was kidnapped on the roads initially because he was Hazara and managed to escape I do not accept that this indicates that the applicant has a well-founded fear of harm as a Shia Hazara in Mazar-e-Sharif itself which is a city he can safely access by air.
The applicant argues that “The Second Respondent then made no further reference to the kidnapping and gave no consideration to the question of whether the applicant’s risk profile was heightened because of his identity previously coming to the attention of kidnappers (from whom he then escaped). Accordingly, it is submitted that the Second Respondent failed to deal with or address an essential element of the applicant’s claim.”
It is clear from the second respondent’s reasons, however, that in [15]-[24] of its reasons, the second respondent dealt with whether or not the applicant would be harmed by the Taliban on relocation to Mazar-e-Sharif on account of him being a Shia Hazara that was a returnee from a western Country (who had characteristics that would identify him as a foreigner/being pro-west) and who had been out of Afghanistan for a lengthy period of time. The second respondent concluded that even though the applicant had these identifiable characteristics, there was no real risk that the Taliban would harm him on relocation to Mazar-e-Sharif. The second respondent was aware that the applicant had claimed that his identity had become known to his kidnappers and that a page from his passport had been taken. Those matters are recorded in the second respondent’s reasons. It cannot be said, in my view, that they were overlooked.
In any event, I accept the second respondent’s submissions that it is not all clear that the claim as now articulated by the applicant was a substantial, clearly articulated claim relying on established facts or clearly emerged from the materials before the second respondent.
I accept that these matters cannot be considered in a vacuum and must be considered in light of the way in which the applicant’s claims were presented over time: AWT15 v Minister for Immigration and Border Protection & Anor [2017] FCA 512 at [68].
I accept the first respondent’s submissions that when consideration is given to the way the applicant’s claims were presented over time it cannot be said that a claim based upon the Taliban knowing his identity and having possession of the bio data page from his passport were clearly articulated or clearly emerged from the materials. His claims were of a more general nature and are primarily articulated in the statutory declaration and submissions before the delegate. His claims in the statutory declaration were:
What I fear may happen to me if I return that that country and why/who will harm me
I believe I would be seriously harmed and possibly killed by the Taliban for reason of being a Hazara and a Shia Muslim.
I have not lived in Afghanistan as an adult. I left when I was 8 years old. I do not have any family members or relatives residing in Afghanistan. People live as tribes in Afghanistan and a new comer is not welcomed. My family and I are identifiable through our language and accent and appearance as someone who has not lived in Afghanistan for a considerable amount of time. I do not grow a bear, I do not dress like an Afghan, I do not eat and act like and [sic] Afghan and my behaviour will raise suspicions and I will be targeted as a foreigner.
…
In respect of these claims, the applicant makes the following points.
a)first, although the Taliban asked the applicant of his identity, the applicant made no suggestion that the Taliban were particularly interested in who the applicant was in terms of his name (rather, it seems to be the case that the Taliban were asking identity questions more for the purpose of ascertaining the applicant’s broader background/characteristics to determine the appropriate course of conduct to take with respect to him). Similarly, the applicant did not make any suggestion that the Taliban took any particular note of his name or recorded it; and
b)second, when the applicant specifically provided the reasons why he feared harm (at [29] and [30] of his statutory declaration), he made no suggestion whatsoever that it was on account of the Taliban being aware of his identity. Instead, the applicant focussed on his general characteristics that would alert the Taliban to his background and general characteristics. Implicitly, these paragraphs suggest that the Taliban would not recognise him in connection with his previous encounter with them.
I accept these observations by the first respondent as accurate. I accept that even if it be the case that the second respondent was obliged to, but did not consider a claim based upon actual knowledge of the applicant’s identity and possession of his bio data page from his passport, such a claim or integer of his claim was not clearly articulated by him or clearly arose on the material before the second respondent.
In my view, the second ground of review pressed by the applicant does not establish that the second respondent’s decision is affected by jurisdictional error.
Conclusion
Having regard to the foregoing, the amended application filed on 14 November 2017 must be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 May, 2018.
Date: 24 May, 2018
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