BWP17 v Minister for Immigration

[2020] FCCA 1684

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWP17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1684

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider a claim when assessing complementary protection – whether the Authority misapplied or misconstrued s 5J(1)(c) of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 476

Applicant: BWP17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 238 of 2017

Judgment of: Judge Street

Hearing date: 23 June 2020

Date of Last Submission: 23 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms N Milutinovic, Sparke Helmore, via Microsoft Teams

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent's costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 238 of 2017

BWP17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 pt 7AA of the Act made on 27 March 2017 affirming a decision of a Delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“the Protection visa”). 

2. The applicant was found to be a citizen of Afghanistan, and his claims were assessed against that country.

3. The applicant was found to be a Hazara Shia Muslim from a particular village in a particular province, and the applicant claimed to fear harm, in summary, by reason of his Hazara race, his Shia religion, an imputed political opinion as being pro-Western and anti-Taliban, and/or his membership of a particular social group, being failed Afghan asylum seekers. 

4. On 12 September 2016, the Delegate found that the applicant failed to meet the criteria for the grant of the Protection visa. 

5. The Delegate did not accept a core claim of the applicant being that his brother ever worked for the American forces. 

6. On 14 September 2016, the Authority wrote to the applicant explaining that his application for the Protection visa had been referred to the Authority for review, and provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. The applicant did put on submissions which were referred to in the Authority's reasons. 

7. The Authority in its reasons identified the background to the Protection visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

8. The Authority had regard to the submissions except insofar as they were identified as containing new information in respect of photographs. The Authority correctly identified the whole of the provisions of s 473DD of the Act and was not satisfied that there were exceptional circumstances to justify considering the new information. 

9. The Authority also referred to the submission that the applicant's brother be contacted by the Authority. The Authority referred to the applicant having been represented before the Delegate and was of the view that the applicant had had an opportunity to present additional information before the Delegate, and was not satisfied that an interview with the applicant or any third party is necessarily required and declined to exercise its powers under s 473DC of the Act.

10. The Authority also wrote to the applicant,  inviting him to comment upon more recent country information in respect to the security situation in Afghanistan and the ability to relocate, and the Authority took into account the applicant's response in that regard. The Court notes that the Delegate also claimed that the applicant would not face a real risk of significant harm in Kabul and that it would be reasonable for the applicant to relocate. 

11. The Authority summarised the applicant's claims and set out the relevant law, included in an annexure of applicable law incorporated by pagination.

12. The Authority accepted that the applicant had lived and/or worked in Iran and Pakistan prior to travelling to Australia, and that his wife and child are in Quetta. 

13. The Authority referred to the applicant's evidence about his brother's work for the United States and that his brother fled and was missing for some time.

14. The Authority identified that the evidence about the applicant's brother has not been consistent and that the applicant was not forthcoming about other relatives he had in Australia, which the Authority found impacted upon the applicant's credibility in relation to his claims to fear harm in connection with his brother.

15. The Authority referred to information provided by the applicant alleging initially that his brother was missing, and then confirming that he has two brothers in Australia. 

16. The Authority referred to the applicant's explanation as to why he had not correctly disclosed his brother's situation, and found that the applicant's evidence in relation to his brother's whereabouts was unsatisfactory, and found that the applicant had not been credible in relation to the movements of his brother. The Authority did not accept the applicant's explanation for providing the false information or the latest submission that he was seeking to protect his brother. The Authority was satisfied that the applicant had concealed his brother's whereabouts and claimed that he was missing to strengthen his claims to fear persecution upon return. It was in these circumstances that the Authority found the applicant's claims that his brother worked for the US military and was targeted by the Taliban and Pashtun villagers not to be credible. 

17. The Authority did not accept that the applicant and his family were at risk from the Taliban, Pashtun villagers or anyone else because of his brother's connection to the US military, meaning the Authority did not accept that the applicant was at risk of being harmed on the basis of any actual or imputed political opinion (pro West or anti-Taliban), and the Authority did not accept the applicant's recent claim that his other brother, living in Kabul, has fled to Pakistan. 

18. The Authority found that there was not a real chance of the applicant being seriously harmed by the Taliban or any other person or group for reasons related to his brother's claimed involvement with the US military or any actual or imputed profile, connection or opinion that the applicant claims may have arisen. 

19. The Authority referred to the applicant's home area and found that there is more than a remote chance that the applicant would face serious harm in his home area. The Authority correctly noted that the real chance of serious harm must relate to all areas of the receiving country. The Authority found that the applicant does not face a real chance of any serious harm for reasons of his ethnicity, religion or any other profile in all areas of the receiving country. 

20. The Authority identified areas like Kabul and Mazar-e-Sharif. 

21. The Authority was satisfied that the applicant has no profile, nor any proximity to any person or group with such a profile, identified in country information, as to give rise to threats, and nor is there any reason to conclude that he would have such proximity on return to Afghanistan. 

22. The Authority turned to consider whether there was a real chance of the applicant being seriously harmed in Kabul and Mazar-e-Sharif. 

23. The Authority referred to country information in relation to both Kabul and Mazar-e-Sharif. 

24. The Authority referred to country information in relation to incidents that occurred and was not satisfied that those groups are seeking to target Hazara Shias or other ethnic or religious minorities within the two cities. 

25. The Authority referred to other country information in relation to attacks and expressly referred to the applicant's response in relation to the invitation to comment letter. 

26. Taking into account the country information, the Authority found that there was only a remote chance and, therefore, not a real chance of the applicant being seriously harmed on the basis of his religion and/or ethnicity, or for any other reason by Islamic state. The Authority also found that there is no real chance of the applicant being seriously harmed in broader sectarianism. 

27. The Authority was not satisfied that the real chance of persecution relates to all the areas of the receiving country and found that the requirements of s 5J(1)(c) of the Act are not satisfied. 

28. The Authority found that the applicant does not have a well-founder fear of persecution for reasons of his ethnicity or religion, or by reason of the Islamic State or any other Anti Government Element or active group in the areas of Kabul and Mazar-e-Sharif. 

29. The Authority was not satisfied now that in major urban areas like Mazar-e-Sharif or Kabul, the applicant faced a real chance of being seriously harmed as a returnee from the West or because he may have sought asylum. 

30. The Authority specifically referred to the deteriorating security situation and the security risks in Kabul and Mazare-e-Sharif. The Authority found that there was no real chance of the applicant being harmed in either city through generalised violence or attacks against other high-profile groups. 

31. The Authority found that within Mazar-e-Sharif or Kabul there is no real chance of the applicant being seriously harmed for reasons relating to his religion or ethnic group or as a returning asylum seeker from the west, any actual or imputed political opinion, through generalised violence or any other profile he may hold. 

32. The Authority was not satisfied that the real chance of persecution relates to all areas of the receiving country, and found the requirements of s 5J(1)(c) of the Act are not met. 

33. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act. 

34. In relation to complementary protection, the Authority expressly considered whether it would be reasonable for the applicant to relocate to Mazar-e-Sharif or Kabul, and took into account that the applicant has a brother who is studying in Kabul, and was satisfied that the applicant does have family networks in Kabul, and that he would be able to draw on that assistance if he relocated there. 

35. The Authority also identified that the applicant had strong experience and a broad skill set and referred to the applicant's work history as well as his demonstrated resilience and resourcefulness and independence in relation to his ability to relocate elsewhere. 

36. The Authority referred to the applicant's ability to speak a number of languages, and that that would assist him to overcome any regional language issues being faced in Kabul and Mazar-e-Sharif. The Authority did not accept that there would be a language barrier for the applicant successfully relocating, or that challenges would make it unreasonable to relocate. 

37. The Authority was not satisfied that the applicant would be unable to work without a licence, and did not accept that he was facing any barrier to finding work. 

38. The Authority was satisfied that the applicant's brother would be able to assist him in finding employment, accommodation, and making networks. The Authority accepted that it may be challenging and took into account that the applicant is not single, that he would be travelling alone and that he is young and able-bodied, and found that the applicant was highly skilled. In these circumstances, the Authority did not accept that it would not be reasonable for the applicant to relocate to either city. 

39. In relation to the ability to find work, the Authority referred to the applicant's wife and child being in Quetta and was satisfied that the separation would be temporary and it would not be unreasonable for the applicant to relocate to avoid harm. 

40. The Authority found the risk of the applicant being harmed in a security-incident attack to be remote, and did not accept that past insecurity precludes the applicant from being able to safely access other parts of Afghanistan such as Mazar-e-Sharif or that these factors make it unreasonable for the applicant to relocate. 

41. The Authority was satisfied that it would be reasonable for the applicant to relocate to an area of the country such as Kabul and Mazar-e-Sharif where there would not be a real risk that the applicant would suffer significant harm. 

42. The Authority found that 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 would suffer significant harm. The Authority found that the applicant does not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

Before the Court

1. These proceedings were commenced on 2 May 2017. On 5 July 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. 

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing, and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant maintained that his brother had a link to the US military and that he would be at risk of harm if returned to Afghanistan. 

4. It is apparent that the Authority expressly referred to and made findings in relation to the applicant's claims concerning his brother having worked for the US military. The adverse finding was dispositive of the applicant's claim and is logical and rational. 

5. The applicant also referred to having provided photographs. Those photographs were considered by the Authority under s 473DD of the Act, and it is apparent that the Authority took into account the whole of the statutory provisions in finding that there were not exceptional circumstances to justify considering the new information. The applicant's reference to the photographs that were not accepted by the Authority do not, in these circumstances, give rise to any jurisdictional error. 

6. The applicant otherwise made reference to the current situation in Afghanistan and the dangers in terms of security that he would face. 

7. It is apparent that the Authority engaged extensively with the country information concerning the security situation in Afghanistan and made adverse findings in relation to the applicant's claims and found that the applicant did not face a real risk or real chance of serious harm or significant harm if he were to return to either Kabul or Mazar-e-Sharif. The Authority also found that it would be reasonable for the applicant to relocate to Kabul or Mazar-e-Sharif in his particular circumstances. 

8. The applicant's disagreement with the adverse findings by the Authority, in substance, invites impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows:   

   1.The IAA failed to or falsely consider a claim made by the applicant in its complementary protection assessment.

   Particulars

   (i)At [11] - [19] of its decision, the IAA was not satisfied that the real chance of persecution related to the Applicant's brother's involvement with the US military.

   (ii)The IAA failed to consider the fact that the Applicant was directly threatened by Taliban/Pashtuns' soldiers.

   2.The IAA misapplied or misconstrued s5j(1)(c) of the Migration Act 1958 (cth).

   Particulars

   (i)    At [27] - [51] of its decision, the IAA was not satisfied that the real chance of persecution related to all areas of Afghanistan.

   (ii)  The IAA failed to consider the special circumstances of the Applicant.

   (iii)  There is a real chance of persecution in Kabul, because the Applicant is a Shia Hazara and Shia Hazaras are targeted by Taliban and other anti-Shia groups in Kabul.

   (iv)   There is a real chance of persecution in Mazar-e-Sharif, because Taliban and other anti-Shia groups target local government, army and international associations. The applicant has a brother who was once a US soldier. Consequently, the Applicant is highly likely to be targeted by Taliban and other anti-Shia Groups.

Ground 1

1. In relation to ground 1, it is apparent that the Authority made an adverse credibility finding in relation to the applicant's claims concerning his brother's involvement in the US military. In these circumstances, the Authority was entitled to take into account the adverse finding that it had made in relation to the consideration of complementary protection. It was open to the Authority to do so and the reasons in support of the adverse findings were logical and rational as summarised above.

2. It is also apparent that the Authority took into account the applicant's claims to fear harm in relation to the Taliban and Pashtuns, and found that the applicant did not have any profile with the Taliban and local Pashtuns. Insofar as the applicant claimed that he had been directly threatened by Taliban or Pashtuns, it is apparent that the applicant claimed that he had not been threatened by the Taliban or Pashtun soldiers directly, but had been warned by a taxi driver that the Taliban were after him.  There was no failure by the Authority to consider a claim that was not made by the applicant. The Authority had an active intellectual engagement with the applicant’s claims and evidence.

3. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, it is apparent that the Authority took into account the applicant being Hazara Shia and referred to country information in making dispositive findings in respect of the applicant’s claims. It was a matter for the Authority what country information the Authority took into account. 

2. The Authority on the face of its reasons correctly identified the relevant law, and there is no basis to find that the Authority misapplied or misconstrued the statutory provisions. The Authority specifically considered the applicant’s circumstances in relation to the reasonableness of relocation.

3. Insofar as ground 2 refers to the applicant's brother being with the US army, this was the subject of an adverse finding by the Authority. That adverse finding was open for the reasons given by the Authority. This ground otherwise reflects a disagreement with the adverse findings and invites impermissible merits review.

4. No jurisdictional error is made out by ground 2. 

5. The Court notes that the applicant's affidavit also identified assertions why the applicant contends there would be a real risk that he would be killed in future attacks. That information included material that was not before the Authority. Information not before the Authority as to the applicant’s claims to fear harm cannot give rise to any jurisdictional error.  The assertions otherwise invited impermissible merits review.

6. It is apparent that the Authority considered the applicant's claims in relation to the security situation and made dispositive findings that were open to the Authority and which reasons provide an evident and intelligible justification for those findings. 

7. No jurisdictional error is made out by anything said in the applicant's affidavit. 

8. The Court noted at the commencement of the hearing that the matter was fixed for an extension of time. There was only a one-day delay, and, given the nature of the issues, the Court was satisfied, in all the circumstances, at an impressionistic level, that it was necessary in the interests of the administration of justice to extend time for the bringing of the proceedings under s 477 of the Act. 

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

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:    

Date: 15 July 2020