BXA17 v Minister for Immigration

[2020] FCCA 1822

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXA17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1822

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the IAA failed to properly consider the applicant’s claims – whether the IAA failed to provide the applicant an opportunity to comment on one aspect of the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BXA17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICESAND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 241 of 2017

Judgment of: Judge Street

Hearing date: 26 June 2020

Date of Last Submission: 26 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms A Ladhams, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 241 of 2017

BXA17

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 IAA”) made on 19 April 2017 affirming a decision of a delegate of the first respondent (“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.

3. The applicant was found to be of Hazara ethnicity and a Shia Muslim and the applicant claimed to fear harm from the Taliban and the Islamic State, and by reason of no longer practicing his Muslim religion. 

4. On 3 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. On 5 October 2016, the IAA wrote to the applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the IAA for review. The letter provided an attached fact sheet and Practice Direction providing the applicant an opportunity to put on new information and submissions. 

5. The applicant did provide submissions and new information, and the IAA’s reasons considered the new information consistently with taking into account the whole of the provisions of s 473DD of the Act. 

6. The IAA identified the background to the Safe Haven Enterprise visa application and had regard to the material referred by the Secretary under s 473CB of the Act.

7. The IAA summarised the applicant’s claims and identified the relevant law, including in an annexure of applicable law incorporated by pagination. 

8. The IAA identified that the applicant had lived much of his life in Iran and that he had returned to his home area in 2011 and resided there until his departure in 2012.

9. The IAA referred to the transfer of money by the applicant to persons labelled as “Family and friends support” that was raised by the Delegate with the applicant. The Delegate put to the applicant at the interview that there was reliable information that he had transferred money to a particular person. That person had his brother’s name, which suggested his brother was alive and that the applicant had supplied false information to the department. The IAA referred to the applicant’s response. The IAA referred to the applicant later saying to the Delegate that his father was in fact alive and that he had made a mistake in saying his father was dead.

10. The IAA found that the applicant’s father was alive and that the applicant has been transferring money to his father in Pakistan in 2013. The IAA found the applicant’s father had returned from Iran to the home region with the applicant and remained with the applicant’s family in 2011, and that it was the applicant’s father, not the applicant, who had inherited land from the deceased grandfather.

11. The IAA referred to the applicant’s claims in relation to the person to whom he transferred money in the applicant’s brother’s name in 2014. In relation to the applicant’s assertion that it was sent to a second cousin, the IAA found that the applicant’s brother has continued to live in the home region since returning there in 2010 and has established a general store.

12. The IAA found the fact that the applicant’s elder brother remaining in the home area seriously undermined the applicant’s claim that family land has been involved in a land dispute. The IAA did not accept that the movement to Iran by the applicant’s family was in any way related to any fears resulting from a family land dispute. The IAA did not accept that the applicant or his family had been involved in a land dispute at all. 

13. The IAA was not satisfied that the applicant faced a real chance of harm from particular persons or entities or the Afghan authorities, Pashtuns, the Taliban or any other actor as a consequence of the land dispute.

14. The IAA was, however, satisfied the applicant would have faced a real chance of being abducted if attempting to return to his home region in a particular district, and correctly identified that the fear of a real chance of persecution must relate to all areas of the receiving country. The IAA expressly referred to it being put to the applicant at his visa interview that Kabul was a place where he could reside without facing a real chance of harm, and the IAA identified the applicant’s response in relation to the same.

15. The IAA took into account country information and was not satisfied for the foreseeable future that the prospect of the applicant suffering harm in Kabul from insurgent groups like Islamic State or the Taliban, or for reason of being a Shia Hazara, reaches a real chance. 

16. The IAA was not satisfied that there is a real chance the applicant would suffer harm as a consequence of communal violence in Kabul for reason of being a Shia and/or a Hazara. 

17. The IAA was not satisfied there is a real chance that the applicant would face harm or real chance of harm in the nature of societal discrimination for being a Shia Hazara in Kabul.

18. The IAA was not satisfied that in Kabul the applicant would face a real chance of suffering discrimination of a level that would threaten his capacity to subsist. The IAA was not satisfied that the evidence suggests that, by reason of being a Shia Hazara, the applicant would face a real chance in Kabul of being harmed in any other way by either an insurgent group like the Taliban or the Islamic State or by members of non-Hazara communities like Pashtuns or by members of the Sunni majority community or any other actor.

19. The IAA was not satisfied that the applicant would face a real chance of suffering harm of any kind in Kabul for reason of being a Muslim who no longer practices his religion by fasting or saying prayers. 

20. The IAA was not satisfied that the drinking of alcohol was fundamental to the applicant’s identity or conscience, or that not drinking alcohol would amount to altering or concealing his religious beliefs or his true political beliefs, or that it would in any way be a modification that falls within any of the other limitations in s 5J(3) of the Act.

21. The IAA referred to the applicant’s time that was spent in Australia and took into account country information. The IAA was not satisfied that there was a real chance the applicant would suffer any harm in Kabul for reasons of his having spent a number of years and having sought asylum in Australia, being a Western country, and because he is a Muslim who no longer practices his faith by fasting and saying prayers.

22. The IAA was not satisfied that the applicant would face a real chance of harm in Kabul as a consequence of generalised violence such as that caused by insurgents and criminals, including in his return via Kabul Airport. 

23. The IAA was not satisfied that the applicant would face a real chance of serious harm in Kabul. 

24. The IAA found that the applicant does not meet the requirement of the definition of refugee in s 5H(1) of the Act. The IAA found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

25. The IAA referred to the findings made in relation to the Refugee Convention. It was not satisfied that the applicant would face a real risk of significant harm in Kabul. 

26. The IAA referred to the applicant being a single, able-bodied man and found that relocation to an urban centre like Kabul is viable for such a person, depending on the circumstances of the case. 

27. The IAA found that the applicant would be able to find employment and earn a livelihood sufficient to meet his needs in Kabul.

28. The IAA referred to the cost of living. The IAA considered that the applicant would be able to find employment and, given that he is a single man, the applicant need only arrange accommodation for himself. The IAA considered that the applicant would be able to find and afford accommodation in Kabul. 

29. The IAA referred to the applicant’s overall circumstances and the foreseeable livelihood and security situation in Kabul and was satisfied that it would be reasonable for the applicant to relocate and remain in Kabul, where there would not be a real risk that the applicant would suffer significant harm. 

30. The IAA was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan, there is a real risk the applicant would suffer significant harm. The IAA 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 19 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed by the applicant. 

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. The applicant submitted orally that he disagreed with the assertions that he could relocate to Kabul. The disagreement with the findings by the IAA does not identify any jurisdictional error. The IAA took into account country information and made adverse findings in relation to the applicant’s ability to relocate to Kabul that were open for the reasons given by the IAA.

4. Further, it was apparent that the IAA took into account the applicant’s personal circumstances in determining whether it was reasonable for the applicant to relocate to Kabul. Nothing said by the applicant in relation to his disagreement as to the findings of the IAA concerning Kabul identified any jurisdictional error. 

5. Further, to the extent that the applicant referred to more recent events in Kabul, that is not a matter that is capable of giving rise to jurisdictional error by the Tribunal. That is because information concerning the applicant’s claims that was not before the IAA is not capable of giving rise to any jurisdictional error.

6. Insofar as the applicant referred to the age at which he had left Afghanistan, it is apparent from the IAA’S reasons that that was a matter the IAA took into account, as referred to in para 11 summarised above. 

7. The applicant’s submissions otherwise invited the Court to engage in merits review. 

8. Nothing said by the applicant orally identified any jurisdictional error. 

The grounds

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

   1.The Assessor failed to properly consider all of my claims.

   2.The Assessor did not give me a chance to comment on one aspect of my claims.

Ground 1

1. In relation to ground 1, the IAA’s reasons reflect an active and intellectual engagement with the applicant’s claims and evidence and the making of dispositive findings that were open for the reasons given by the IAA as summarised above. There has been no claim or integer of a claim identified by the applicant that the IAA failed to consider. In the absence of proper particulars, ground 1 is incapable of making out any jurisdictional error.

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

Ground 2

1. In relation to ground 2, subject to the provisions of pt 7AA of the Act, the IAA is required to consider the review material provided by the Secretary under s 473CB of the Act without accepting or requesting new information and without interviewing the referred applicant. 

2. Given that the issue of relocation to Kabul had been raised by the Delegate with the applicant, and given the letter sent by the IAA to the applicant dated 5 October 2016 giving an opportunity to provide new information and submissions, the absence of an express consideration of the power under s 473DC of the Act cannot be said to lack an evident and intelligible justification.

3. There is no issue identified of a kind that had not been raised before the Delegate so as to require express consideration of the power under s 473DC of the Act. 

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

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

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date: 15 July 2020