BWJ18 v Minister for Home Affairs

[2018] FCCA 2209

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWJ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2209

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider integers of the applicant’s claims – whether the Authority overlooked material evidence – whether the Authority failed to exercise its powers under s 473DC of the Act – whether the Authority made a legally unreasonable finding of fact – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DD, 473EA, 476

Cases cited:

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Applicant: BWJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1035 of 2018

Judgment of: Judge Street

Hearing date: 13 August 2018

Date of Last Submission: 13 August 2018

Delivered at: Sydney

Delivered on: 13 August 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Parish Patience Immigration Services Pty Ltd

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1035 of 2018

BWJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 of the Act made on 16 March 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Shia Hazara from the Ghazni Province in a particular district. The applicant claimed to fear harm because of the lack of security in his home region as it is surrounded by Pashtun majority. The applicant claimed he will not be able to financially support his family and fears harm from the Taliban for being a Hazara Shia and a failed asylum seeker from a Western country. The applicant also fears harm on the basis of his Iranian accent and dressing in a manner different to the Iraqi Afghans.

3. On 26 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate, in that regard, found the applicant could reasonably and practically relocate to Kabul or Mazar-e-Sharif.

The Authority

1. By letter dated 29 June 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information. The Authority’s reasons expressly refer to having received a number of submissions between 20 July 2017 and 31 January 2018 and found to the extent that they engaged with the delegate’s decision that the submissions did not constitute new information and the Authority considered the same.

2. The Authority identified that there was the relevant country information but the Authority was not satisfied that the requirements of s 473DD of the Act were met. The Authority referred to a new claim involving chronic back pain, which was raised in the applicant’s submission dated on 20 July 2017 and found that the new information failed to meet the criteria under s 473DD of the Act. The Authority referred to a doctor’s report dated 7 October 2017 in relation to the applicant’s therapy to improve his mental capacity and physical functionality and was receiving cognitive behaviour therapy, which the Authority found there were exceptional circumstances to justify considering.

3. The Authority summarised the applicant’s claims. The Authority correctly identified the relevant law. The Authority was satisfied the applicant is able to return and reside in his home district in Ghazni and that he will not face a real chance of any harm now or in the reasonably foreseeable future.

4. The Authority took into account country information in relation to the roads between Kabul and the Ghazni Province and took into account that the applicant would only be making a one-way journey and once he had returned to his village where his immediate family continues to reside, the Authority found the applicant would have no need to travel outside the Hazarajat region on a frequent basis. The Authority found that the applicant will be able to safely access his home area by air and road if he chose not to travel by road from Kabul to Jaghori. The Authority was satisfied the government maintains effective control and that there is no real chance the applicant would be harmed during his transit through a targeted attack or generalised violence. The Authority was not satisfied the applicant faces a real chance of harm on his transit from Kabul to his home region.

5. The Authority referred to the incident in which the applicant was forced to have his hair cut and was not satisfied the applicant will face any real chance of harm on this basis. The Authority referred to the applicant having spent time residing in Iran and having an Iranian accent. The Authority took into account country information and found the applicant had maintained a familiarity with the Afghan culture and lifestyle, despite not having lived there for an extended period of time since his youth. The Authority was not satisfied the applicant will be harmed on return to Afghanistan for speaking in an Iranian accent, his dress, not being familiar with his surroundings and culture or for any reason related to his extended period living in Iran. The Authority was not satisfied there is a real chance the applicant will be harmed on this basis.

6. The Authority referred to the applicant having lived in Australia since 2012, which is a Western country and the applicant’s fears he will also be considered to be Westernised. The transcript of the interview reveals the applicant being asked questions by the case officer about the problems the applicant may face and the applicant said:

   So when I forced to return to Afghanistan, [they’re are a spy] or [former men from] Hazara community who can report me to the Taliban and the Taliban will kill me because I came from the country like Australia and I will be accused of being a Christian and this situation is in front of me.

7. The delegate, under the ‘Fear of Return’, refers to the applicant being asked what he fears if returned to Afghanistan and noted the applicant explained that he fears return to Afghanistan because if he were to return there are lots of local Hazaras who are Taliban spies and would report that he has returned from a Western country where he has been converted to Christianity. The delegate also referred to the applicant saying that if forced to return to Afghanistan anywhere he goes local spies will report him to the Taliban and he will be accused of being Christian and his life will be over. The delegate further referred to the applicant stating that he fears returning to Afghanistan because he would be returning from Australia, a Western country and, due to his Iranian accent, he would be reported to the Taliban by spies anywhere he goes.

8. The Authority in its reasons, having referred to the applicant’s fear that he will be considered to be Westernised, took into account country information and concluded there was no information to suggest that returnees from Western countries attract negative attention from state authorities for having sought or failed to gain asylum. The Authority was not satisfied, on the evidence before the Authority, that the applicant will be harmed on the basis of being Western or being perceived to be Western because of the time he spent in Australia or otherwise. The Authority was not satisfied the applicant’s residence in Australia will put the applicant at any risk upon return on the basis of appearing Western or being a failed asylum seeker from Australia. The Authority was not satisfied that the applicant faces a real chance of harm on this basis.

9. The Authority referred to the applicant’s claim that if he returned to Afghanistan he would be unable to financially support his family. The Authority found the applicant had engaged in employment since he was 13 years old and had worked in a factory in Iran and as a painter and had continued to work as a painter in Australia. It was in those circumstances the Authority found the applicant will be able to seek employment, either in his home area and/or its surrounds. The Authority was not satisfied the applicant will face any harm if he were required to travel in or around his home region for employment purposes. The Authority was satisfied the applicant will be able to financially support his family if he is required to do so and expressly referred to the fact the applicant has been doing so since he was 13 years old. It was in those circumstances the Authority was not satisfied that the applicant seeking employment opportunities to support his family will result in a real chance that the applicant will face serious harm.

10. The Authority referred to the psychologist’s report and the recommendation that the applicant undertake psychological intervention for his current depression and anxiety symptoms, but the Authority noted that the nature of that intervention had not been explained. The Authority found the applicant had not claimed to fear harm on return to Afghanistan on the basis of his anxiety or mental condition, although it was submitted that it could impact on his ability to relocate within Afghanistan. The Authority took into account that the psychologist had stated the applicant is gradually improving. The Authority also took into account that the applicant had not identified what, if any, medical assistance he would require upon return to Afghanistan.

11. The Authority found if the applicant continues to suffer from mental health issues upon his return to Afghanistan, the DFAT country information report dated 18 September 2017 has reported the health system has improved since 2001 and that 85 per cent of the population now have access to health services and that there are 60 health facilities in the applicant’s home region which offer basic health care but limited access to specialists. It was in those circumstances the Authority was not satisfied the applicant would face a real chance of any harm on this basis.

12. The Authority was not satisfied the applicant has a profile where it would attract adverse attention. The Authority was not satisfied there was a real chance the applicant will face harm now or in the reasonably foreseeable future. The Authority found the applicant did not meet the definition of the refugee in s 5H(1) of the Act. The Authority found the applicant failed to meet the criteria in s 36(2)(a) of the Act.

13. The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Afghanistan, there is a real risk that the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the application are as follows:

   1. The authority made a jurisdictional error by failing to consider a claim made by the applicant or an integer of such a claim or overlooked material evidence or failed to discharge its statutory function of reviewing the delegate's decision.

   a. Before the delegate, the applicant claimed that he feared returning to Afghanistan in part because of local Hazara who were Taliban spies and would report his return from a

   Western country as a Christian Convert (CB 351 & Transcript Page 19);

   b. The Delegate rejected this claim (CB 351);

   c. The Authority failed to consider the matters of perceived Christianity and conduct by Taliban spies rather than State Authorities (CB 877-888. Para. 29)

   2. The Authority made a jurisdictional error by overlooking, failing to have regard to and/or according proper, genuine and realistic consideration to a submission and /or claim made by the Applicant.

   a. The Authority was required, in accordance with CLVI6 v Minister for Immigration and

   Border Protection [2018] FCAFC 80, to consider submissions made by the Applicant;

   b. The representatives of the Applicant referred, in their submission dated 21 July 2017, to the depleted socio-economic situation and widespread poverty in Afghanistan;

   c. The Authority, at paragraph 30 of its decision, referred to its satisfaction that the Applicant would be able financially to support his family;

   d. In making the above finding, the Authority have the requisite regard to or consideration of the Applicant's submission and/or claim as to the circumstances in Afghanistan.

   3. The Authority made a jurisdictional error by failing to consider inviting a submission from the Applicant:

   a. As the Authority noted at paragraph 2 of its decision, the Delegate had made a decision on the basis that the Applicant could reasonably relocate to Kabul and/ or Mazar-e-Sharif;

   b. The Authority instead made a decision on the basis that the Applicant could return to Jaghori;

   c. The Authority, at the point when it proposed to make a decision on a basis different from the basis adopted by the Delegate, ought to have considered inviting a submission from the Applicant under s 473DC of the Migration Act 1958 (Cth);

   d. The Authority failed to do so;

   e. To the extent that it decided otherwise, the Applicant formally submits that DGZI6 v

   Minister for Immigration and Border Protection [2018] FCAFC 12 was wrongly decided.

   4. The Authority made a jurisdictional error by making a legally unreasonable finding of fact or making a finding of fact for which there was no evidence on the material before the Authority:

   a. The Authority found at paragraph 31 of its decision that the Applicant would not suffer harm due to the absence of mental health care in Afghanistan;

   b. The Applicant referred to a DFAT report regarding the availability of basic health care but the effective absence of specialists in Jaghori;

   c. The evidence referred to by the Authority rendered legally unreasonable and/or with no evidence the Authority's finding with respect to the Applicant's mental health care in Jaghori.

Ground 1

1. In relation to ground 1, Mr Jones of counsel on behalf of the applicant took the Court to the transcript of the applicant’s interview with the delegate, as referred to above, in relation to the problems the applicant would face. Mr Jones contended that the Authority’s reasons were not dispositive of the applicant’s claimed fear as it had focused on harm from the state authorities and referred in that regard to the third line in paragraph 29 of the Authority’s reasons on page 878 of the Court Book.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority clearly identified the applicant’s claim to fear harm being a failed asylum seeker from a Western country in paragraph 10 of its reasons without limitation to state authorities. The Authority’s reasons in paragraph 29 should not be read with a keen eye for error. The Authority’s recognition of the applicant’s claim to fear harm by reason of being considered to be Westernised was not limited in that regard to state authorities. The Authority’s reference to not being satisfied that the applicant would be harmed on the basis of being Western or being perceived to be Western because of his time in Australia or otherwise, also does not suggest the Authority was confining the consideration of the applicant’s claimed fear to state authorities.

3. The Authority’s finding at the end of paragraph 29 that the Authority was not satisfied that the applicant’s residence in Australia will put the applicant in any risk upon return on the basis of appearing Western or being a failed asylum seeker from Australia and not being satisfied that there is a real chance the applicant will face harm on this basis, was dispositive of the applicant’s claim to fear harm from persons other than just the state authorities, but including there being Taliban spies and harm from the Taliban or being accused of a Christian.

4. The issue of being accused by the Taliban or being reported by Taliban spies or being accused of being a Christian were all raised in the context of harm feared by the applicant by reason of returning from Australia as a Western country. The findings of the Authority were dispositive of the applicant’s claim and there is no integer of the applicant’s claim that the Authority failed to address. No jurisdictional error rises by reason of ground 1.

Ground2

1. In relation to ground 2, Mr Jones submitted that the Authority had failed to give a proper, genuine, and realistic consideration to the submission advanced by the applicant in relation to the socio-economic situation in Afghanistan not being comparable to those in Iran or Australia, which was referred to in the applicant’s submissions dated 21 July 2017. Mr Jones referred to the Authority’s reasons in paragraph 30 and submitted, notwithstanding the clear reference to having considered the submissions in paragraph 5, as well as reference to another topic raised in the applicant’s submissions in paragraph 8 of the Authority’s reasons, that there had not been a genuine and realistic consideration of the applicant’s claims given in the reasoning in paragraph 30.

2. Paragraph 30 of the Authority’s reasons clearly reflects engaging with the substance of the submissions in respect of the applicant’s concern as to being unable to financially support his family by obtaining employment. The Authority’s reasons in that regard take into account the applicant’s experience in a factory and as a painter as well as, in particular, that the applicant has been working since he was 13 years old. There is no requirement for the Authority to expressly refer to the applicant’s submission concerning the socio-economic comparative difference. The Authority’s reasons reflect a real and meaningful consideration of the applicant’s submissions and the making of a dispositive finding that was open to the Authority. Further, the express reverence by the Authority to the other topic on the same page of the submissions in paragraph 8 of its reasons further supports the conclusion that the Authority gave the applicant’s submissions real and genuine consideration. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Jones properly conceded, as a matter of formality, that this Court was bound by the decision of the Full Court in DGZ16v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72] and that the applicant advanced a formal submission that the Full Court’s decision was wrongly decided. Mr Jones’ course in that regard was a proper course to preserve his client’s rights in that regard and acknowledging that this Court is bound by the decision in the Full Court. The Court notes that the issue of the applicant being able to reside in his home region was addressed in the applicant’s submissions to the delegate as well as in country information provided to the delegate. No jurisdictional error arises under ground 3.

Ground 4

1. In relation to ground 4, Mr Jones contended that the Authority’s finding in paragraph 31 that the applicant would not suffer harm on the basis of his mental condition was legally unreasonable. I take into account the nature and scope of Part 7AA of the Act, including s 473EA of the Act. The Authority, as summarised above, gave reasons in support of the adverse finding, which included taking into account country information as to the improvement of the health system and the number of health facilities in the home region of the applicant. The psychologist’s report acknowledged the applicant’s condition was improving, which was a further matter taken into account by the Authority in its adverse finding.

1. The limited access to specialists that the Authority acknowledged does not give rise to the Authority’s reasons being illogical, irrational or unreasonable. In that regard, the psychologist referred to the applicant being recommended to undertake psychological intervention for his current depression and anxiety symptoms, which was expressly referred to by the Authority and the Authority noted that the report did not outline what further intervention is to be taken. The Authority’s reasons cannot be said to lack an evident and intelligent justification. Accordingly, either in exercise or outcome is the Authority’s adverse finding in paragraph 31 the subject of legal unreasonableness. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 August 2018