BWB16 v Minister for Immigration

[2017] FCCA 2497

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2497

Catchwords:

MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority erred in considering relocation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 5H, 473CB, 476

Applicant: BWB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 501 of 2017

Judgment of: Judge Street

Hearing date: 16 October 2017

Date of Last Submission: 16 October 2017

Delivered at: Sydney

Delivered on: 16 October 2017

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 501 of 2017

BWB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority) under Part 7AA made on 16 January 2017 affirming a decision of the delegate not to grant the applicant a safe haven enterprise visa. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. An earlier decision of the Authority, differently constituted, on 22 June 2016 was set aside by consent orders of this Court on 5 October 2016 and remitted for reconsideration.

2. The applicant arrived in Australia on 22 October 2012 as an unauthorised maritime arrival on Christmas Island. The applicant left behind a wife and three children. For much of the applicant’s life he worked in Iran. He returned to visit his family on three occasions. On two of those occasions he had children that he was visiting when he returned to Afghanistan. The applicant was from a particular district in the Ghazni province and is a Hazara Shia. The applicant came to fear harm from his uncles as a consequence of a property dispute and a blood feud.

3. The applicant also claimed to fear harm from the Taliban and the Islamic State as a Hazara Shia. The applicant maintained that it was not safe for him to relocate and also claimed to fear harm by reason of being a failed asylum seeker.

4. On 2 May 2016, the delegate found that the applicant failed to meet the criteria for the grant of a safe haven enterprise visa and refused the application.

The current Authority’s decision

Information before the Authority

1. Following the orders remitting the matter to the Authority for reconsideration, the Authority wrote to the applicant on 19 October 2016, giving the applicant an opportunity to put on new information and submissions. The applicant, through his migration agent, put on submissions provided to the Authority on 26 October 2016. Those submissions were then expanded upon and incorporated with other material and provided to the Authority on 27 October 2016. The Authority referred to those submissions in detail in its reasons, albeit referring to the same as if dated 28 October 2016. There is no consequence that has been raised in respect of the typographical error as to the date of the submissions.

2. The Authority, in its reasons, identified the background to the visa application as well as having regard to the material referred under s 473CB of the Act. The Authority made reference to earlier submissions that have been provided to a differently constituted Authority. The Authority also made detailed reference to the submissions and information described as dated 28 October 2016.

3. The Authority was satisfied there were exceptional circumstances to justify considering the new information that was provided with the submissions and took the same position in relation to a statutory declaration of the applicant concerning whether his uncles occasionally visit a place to which it was identified might be a place to which it would be reasonable for the applicant to relocate.

Refugee assessment

1. The Authority identified the applicant’s claims for protection and set out the relevant law. The Authority found it was not satisfied the applicant faced a real chance of harm as a Hazara Shia in his home area. However, the Authority accepted that the applicant would be required to return to his home area by land and accepted that he may face a real chance of serious harm by insurgents on a return trip due to his religion and ethnicity.

2. The Authority made reference to the requirements of s 5J(1)(c) in considering that the real chance of persecution must relates to all areas of the receiving country and made reference to country information in relation to Mazar-e-Sharif having a favourable level of security in relation to Hazara Shias. The Authority found that the evidence did not suggest the security of Mazar-e-Sharif was at risk of deteriorating significantly in the foreseeable future and was not satisfied the applicant faced a real chance of harm in Mazar-e-Sharif as a Hazara and/or as a Shia and/or as a consequence of being a target of or bystander to an insurgent attack of another kind. The Authority was not satisfied the applicant would face a real chance of harm as a Hazara Shia returning from the West who had sought asylum in Australia.

3. The Authority gave significant weight to DFAT country information that with the exception of those travelling by road between Kabul and Harajat, low-profile Hazaras who spent time in Western countries face a low risk of violence as a result of those international links. The Authority made reference to the applicant’s experience of having lived much of his life in Iran and that that would not be unusual in terms of Hazara society. The Authority noted the applicant had not provided evidence of any specific incident of past difficulties as a result of the time spent in Iran nor how his time in Australia would cause him specific problems upon return.

4. The Authority made reference to the applicant while as a newcomer to Mazar-e-Sharif and as a Shia Hazara and as a consequence of family and tribal nepotism, might face discrimination in the employment market, the Authority was not satisfied there is a real chance the applicant would be denied the capacity to earn a livelihood or access basic services or to be subjected to economic hardship such that it would threaten his capacity to subsist.

5. In considering the applicant’s claimed fear of harm from his uncles due to a property dispute, the Authority accepted the basic factual claims regarding that dispute. The Authority did not accept that the applicant’s uncles pursued him and beat him many times, that they instructed the Taliban to kill him on their behalf, that they had given his photograph to the Taliban for that purpose or that the Taliban was searching for the applicant. The Authority was not satisfied that the uncles had any ongoing interest in the applicant in the form of a blood feud.

6. The Authority was not satisfied the applicant would pursue the property dispute if returned to Afghanistan. The Authority accepted there was a real chance the applicant would be beaten by his uncles if he demanded his share by repeatedly appearing at the property, but found that he would not face a real chance of harm if he were returned to and remained in Mazar-e-Sharif. The Authority accepted that the applicant’s uncles occasionally travelled to cities including Mazar-e-Sharif for business purposes, but taking into account the finding that the uncles had no ongoing interest in the applicant, the Authority did not accept that they would seek to harm him.

7. The Authority found the applicant would be able to return to Mazar-e-Sharif directly or could transit by air via Kabul. The Authority was not satisfied the applicant would face a real chance of harm in transit as a Hazara Shia or a bystander to an insurgent attack. The Authority found that it was not satisfied that the applicant’s uncles would have any future adverse interest in harming him if he resided in Mazar-e-Sharif. The Authority was not satisfied the applicant would face a real chance of serious harm in Mazar-e-Sharif for any reason even if all his circumstances are considered in a cumulative manner. It was in those circumstances the Authority found that the applicant failed to meet the requirements of the definition of refugee in s 5H(1) and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Authority then turned to consideration of the applicant’s claims in relation to complementary protection. In that regard, the Authority relied on its anterior findings and was not satisfied the applicant would face a real chance of significant harm if returned to Mazar-e-Sharif. In assessing whether it was reasonable for the applicant to relocate to Mazar-e-Sharif, the Authority had regard to the applicant’s life experience, skills, and resilience which it found to be sufficient to reasonably offset the challenges he would face in relocating and establishing himself and found that employment, shelter, and essential services would be available to him.

2. The Authority noted the applicant had continued to live apart from his wife and children for the past four years in Australia and that relocation would require him to continue to do so in the foreseeable future. The Authority observed that the applicant had demonstrated capacity to live apart from his family while in Australia and also while working in Iran. The Authority accepted that the applicant was concerned for his family and visited them while working in Iran, but that the road security was such that he was unable to make such visits for the foreseeable future. The Authority found that the applicant had demonstrated that he was willing to remain apart from his family for extended period to pursue his protection claims in Australia and was not satisfied that he would feel compelled to return to his home district to maintain family ties if returned to Mazar-e-Sharif.

3. The Authority concluded that it was satisfied that it would be reasonable for the applicant to relocate to Mazar-e-Sharif. The Authority was therefore not satisfied the applicant met the criteria for the grant of a Safe Haven Enterprise visa on the grounds of complementary protection under s 36(2)(aa) of the Act and affirmed the decision under review.

Proceedings before this Court

Grounds in the application

1. The grounds in the amended application are as follows:

   1. In holding that s 36(2B) of the Act applied to the applicant, the Authority erred by misconstruing the relocation test under s 36(2B) of the Act, or by failing to consider whether it was reasonable to expect the applicant to refrain from travelling from Mazar-e-Sharif to Jaghori in order to see his wife and children.

   Particulars

   a. The Authority accepted that the applicant may “face a real chance of being abducted and killed by an insurgent, and/or criminal, group for reason of his being a Shia Hazara while travelling from his return airport to his home area of Jaghori District”: at [37].

   b. The Authority accepted that the finding referred to in the preceding particular meant that the applicant faced a real risk of significant harm in undertaking the journey from return airport to Jaghori District: at [37].

   c. The Authority found that the applicant did not face a real risk of significant harm in Mazar-e-Sharif: at [38].

   d. The applicant made a submission to the Authority that, if he were returned to Afghanistan, “it would be unreasonable to require the Applicant not to make the journey to Jaghori to maintain a relationship with his family”: submission of 278 October 2016 at [12].

   e. The applicant made a submission to the Authority that “expecting the Applicant to remain in Mazar-i-Sharif, being unable to visit his wife and children to maintain familial ties, would amount to significant harm”: submissions of 27 October 2016 at [13].

   f. The Authority stated that it did not “accept that the applicant would feel compelled to return to Jaghori to maintain family ties if he were to take up residence in Mazar-e-Sharif”: at [41].

   g. The Authority concluded that it would “be reasonable for the applicant to relocate to Mazar-e-Sharif”: at [41].

   h. The Authority erred by either or both one or more of:

   i. treating its holding referred to in particular (f) above as dispositive of whether it was reasonable to expect the applicant not to travel from Mazar-e-Sharif to Jaghori in order to see his wife and children;

   ii failing to consider whether the applicant being unable to visit his wife and children would cause the applicant harm; or

   iii. failing to consider whether it was reasonable to require the Applicant not to make the journey to Jaghori to see his wife and children.

2. Mr Mostafa of counsel argued that the Authority had misconstrued the relocation test under s 36(2)(b) in respect of complementary protection and in particular in failing to consider whether it was reasonable to expect the applicant to refrain from travelling from Mazar-e-Sharif to his home district in order to see his wife and children.

3. Both orally and in his written submissions Mr Mostafa argued that the Authority had focussed on an erroneous consideration by reason of focusing upon whether the applicant would be compelled to return to his home district to maintain family ties, rather than focussing upon whether it reasonable for the applicant in his circumstances with his family in his home district to relocate to Mazar-e-Sharif.

4. No criticism was advanced that the finding that the applicant would not feel compelled to return to his home district to maintain family ties if he were to take up residence in Mazar-e-Sharif was not reasonable or open, nor was any submission advanced that the Authority had taken into account an irrelevant consideration in relation to the applicant’s continued residence apart from his family in Australia. Reference was made to the applicant’s submissions described as dated 28 October 2016 that the applicant remaining separated from his wife and children would amount to significant harm.

5. No submission was advanced that the applicant would suffer mental harm, nor did any such claim arise on the material before the Authority. It was argued that the Authority had treated the finding that the applicant would not feel compelled to return to his home district to maintain family ties as an irrelevant factor in determining the reasonableness for relocation.

Consideration

1. The Authority’s reasons are not to be read with a keen eye for error. The fact that the applicant would not feel compelled to return to his home district was a relevant consideration that it was open to the Authority to take into account in determining whether it was reasonable to require the applicant to relocate.

2. There was no jurisdictional error made by the Authority by treating as dispositive the finding that the applicant would not feel compelled to return to his home district to maintain family ties. The Authority’s reasons referred to considering the applicant’s overall life experience which incorporated the earlier reasoning in finding that that the Authority was satisfied it would be reasonable for the applicant to relocate to Mazar-e-Sharif and in making the finding that that was an area where there would not be a real risk that the applicant would suffer significant harm.

3. The Authority continued in its reasons to find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there is a real risk the applicant will suffer significant harm. Those findings were dispositive findings that took into account the separation from the applicant’s family, being his wife and three children, and, on the face of the Authority’s reasons, there was a real and meaningful engagement with the submissions described as dated 28 October 2016 by the Authority.

4. A fair reading of the Authority’s reasons reflect that the Authority took into account that the applicant would be unable to visit his wife and children in the dispositive findings made by the Authority. Those dispositive findings were open and cannot be said to lack an evident and intelligible justification. Mr Mostafa also argued that the Authority had failed to consider whether it was reasonable to require the applicant not to make the journey to visit his wife and children. It is apparent that the Authority considered the whole of the applicant’s circumstances in determining the question of whether or not it was reasonable for the applicant to relocate.

5. In substance, the argument that the Authority failed to consider whether it was reasonable to require the applicant not to make the journey is an invitation to this Court to engage in impermissible merits review.

Conclusion

1. No jurisdictional error as alleged in the grounds of the amended application is made out.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 November 2017