BYB18 v Minister for Immigration
[2020] FCCA 1832
•6 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYB18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1832 |
| Catchwords: MIGRATION – Visa – protection visa – Safe Haven Enterprise (subclass XE-790) visa – application for judicial review of decision of Immigration Assessment Authority – Authority took into account the applicant’s personal attributes and failed to consider relevant material in finding relocation to be reasonable – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CC, 476 |
| Cases cited: BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 0177 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 |
| Applicant: | BYB18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 205 of 2018 |
| Judgment of: | Judge McNab |
| Hearing date: | 26 March 2020 |
| Date of Last Submission: | 26 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Edwards |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Ms Taggart |
| Solicitors for the First Respondent: | Australian Government Solicitors |
ORDERS
The application filed on 16 April 2018 and amended on 8 August 2018 be allowed.
The decision of the Immigration Assessment Authority dated 19 March 2018 be quashed.
A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
The first respondent pay the costs of the applicant fixed in the sum of $7,467.
The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 205 of 2018
| BYB18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENTAUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
By application dated 16 April 2018 and amended on 8 August 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 19 March 2018. The Authority’s decision affirmed a decision of a delegate (‘delegate’) of the first respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise (subclass XE-790) visa (‘the visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).
The matter was heard on 26 March 2020.
For the reasons which follow I have concluded that the application should be allowed.
Background
The applicant is a 36 year old Afghan national, from the Takhar province. He is of Tajik ethnicity and is a Sunni Muslim.
In 2008, the applicant left Afghanistan at the age of 26. His claims for protection relate to a land inheritance and a fight involving an uncle, family members who support the uncle and the applicant’s brother.
On 24 December 2012, the applicant arrived in Australia as an unauthorised maritime arrival.
On 13 November 2016, the applicant applied for the visa on the grounds that he was in need of protection pursuant to s 36(2)(a) and/or (aa) of the Act.
On 23 February 2017, the applicant was invited to an interview with the delegate. This interview was subsequently postponed and the applicant was invited to an interview before the delegate on 15 May 2017. The applicant attended this interview.
On 22 May 2017, the applicant’s representative forwarded to the delegate post-interview submissions, information about the applicant’s brother’s incarceration and an inheritance advice document which evidenced the applicant’s ownership of the land in dispute.
On 17 June 2017, the delegate refused to grant the visa.
On 21 June 2017, the applicant’s matter was referred to the Authority.
On 4 January 2018, the applicant’s migration agent provided the Authority with written submissions.
On 21 February 2018, the Authority invited the applicant to comment on the overall situation in Mazar-e-Sharif, and on the security situation in Afghanistan for Shia Hazaras and returnees.
On 7 March 2018, the applicant’s migration agent provided a response to the request for comment.
On 19 March 2018, the Authority affirmed the delegate’s decision not to grant the visa.
The applicant’s claims for protection
The applicant’s submissions at [6]-[16] and [20]-[22] provide a summary of his claim to be in need of protection, which include but are not limited to the following reasons:
a)his involvement in a land dispute with his paternal uncle and members of his uncle’s family;
b)a blood feud arising from the land dispute;
c)potential problems as a returned asylum seeker from the west; and
d)generalised violence in Afghanistan.
Grounds of Review
The applicant’s amended application provides the following ground of review:
The decision of the second respondent to affirm the decision not to grant the Applicant a Safe Haven Enterprise Visa is affected by jurisdictional error in that the second respondent did not perform its statutory task under s.36(2)(b) of the Migration Act 1958 (Cth) in finding that it would be reasonable for the Applicant to relocate to Mazar-e-Sharif in Afghanistan.
Applicant’s submissions
First, the applicant says that the Authority erred in its application of s 36(2) of the Act because it was required to, but did not, consider his claim of generalised violence when considering whether it was reasonable for the applicant to relocate to Mazar-e-Sharif.
Second, the applicant contends that the Authority erred by having regard to his personal attributes and not general information material provided about Mazar-e-Sharif when evaluating whether it would be reasonable and practical for the applicant to relocate to Mazar-e-Sharif.
Aspect 1
The applicant submits that the Authority considered a generalised violence claim as part of its refugee assessment but did not consider the applicant’s claims as part of its complementary protection assessment.
The applicant says that because the generalised violence was only assessed against the context of a real risk of harm to the applicant and did not include the reasonableness of the relocation, the Authority failed in its statutory duty.
The applicant cites the Full Court decision of DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 0177 at [27] and [29], to support the proposition that concluding that there is no risk of significant harm in a particular area does not necessarily mean that the applicant could reasonably relocate to that area.
The applicant also referred to Mortimer J’s decision in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (‘MZANX’) at [55] and [58], where her Honour held that:
[55] In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual — her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision — maker about what will face that particular individual and how she or he will cope.
…
58. […] the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision — maker’s experience and expertise, and the material regularly provided to decision — makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
Aspect 2
Relying upon Mortimer J’s decision in MZANX, the applicant claims that the Authority did not engage in the assessment of general information about Mazar-e-Sharif before reaching conclusions (based upon the applicant’s personal attributes and circumstances) that it would not be unreasonable for him to relocate to that city. The applicant says that, while not expressly stated, there are issues regarding his ability to find work and meet his basic needs.
The applicant notes that at [84] of the decision the Authority assessed his age, employment history and medical history before concluding that he would ‘have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life’. However, the applicant says that the Authority erred in drawing the above conclusions from his personal attributes, rather than the general information about Mazar-e-Sharif outlined throughout the decision, which constitutes the Authority’s failure in its statutory duty pursuant to s 36(2)(b) of the Act.
First respondent’s submissions
Aspect 1
The Minister submits that the Authority did in fact consider the issue of generalised violence and risk of harm in Mazar-e-Sharif, and he says there is no error found regarding this aspect of the sole ground.
The Minister notes that that the Authority had considered (but did not accept) the information provided by the applicant from ‘smarttraveller.com.au’ (‘DFAT travel advice’) as evidence of generalised violence in Afghanistan as it applied to Afghan nationals (including the applicant). It is submitted that the Authority noted that there remained a chance the applicant would be harmed by generalised violence in Afghanistan as a bystander, but that this was not a ‘real’ chance.
Regarding the reasonableness of relocation to Mazar-e-Sharif, the Minister also asserts that, at [76] of its decision, the Authority ‘noted that whilst there had been some destabilisation of the security situation in 2016-2017, that destabilisation was limited to incidents which targeted the government and military.’
It is further submitted that:
a)at [89] of its decision the Authority examined the applicant’s ability to safely access Mazar-e-Sharif, examining the safety of air travel and road options available;
b)at [90] of its decision the Authority reasoned there was no basis upon which it could conclude that the situation in Mazar-e-Sharif would deteriorate in the foreseeable future;
c)the Authority considered the security situation and potential of generalised violence in Mazar-e-Sharif, as well as the overall situation across Afghanistan when it determined that the applicant could reasonably relocate to Mazar-e-Sharif; and
d)the applicant’s assertion the Authority first mentioned generalised violence at [91] of its decision record is incorrect and is a ‘selective’ reading of the decision.
Aspect 2
Here the Minister submits that there was no error committed by the Authority and there is no merit to this aspect of the applicant’s ground of review.
It is said that that while Mortimer J’s decision in MZANX is an ‘orthodox set of principles’ which outlines that there must be engagement with the materials that is before the decision maker, it ‘does not prescribe that a minute examination of, or elaboration upon, every circumstance of the relocation is required’: BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 (‘BDA17’) at [15] and [16].
The Minister contends that the Authority performed the task required and described by MZANX because it genuinely engaged with the material before it, considering both the general situation on the ground in Mazar-e-Sharif as well as an assessment of the applicant’s particular circumstances, including in relation to:
a)the safety and stability of the city;
b)the practicality of the applicant securing employment;
c)housing;
d)the applicant’s ability to integrate into the city and establish networks;
e)access to health care; and
f)particulars of the applicant’s claims in relation to unreasonableness.
Consideration
Aspect 1
At [53] of its reasons the Authority commenced consideration of the applicant’s claims to fear harm from generalised violence in Afghanistan. The Authority referred to a number of sources of country information including travel advice provided by the DFAT travel advice, although preferred to rely upon country information other than the DFAT travel advice as that advice was removed from the applicant’s personal circumstances.
In considering the applicant’s claim under s 36(2)(a) of the Act the Tribunal found at [58] that:
Having regard to all of the above, I am satisfied that although the security situation throughout Afghanistan remains unstable and fluid, the reports do not indicate that civilians without any other adverse profile are generally targeted for harm. Although there remains a chance that the applicant will be harmed by generalised violence in Afghanistan as a bystander, I’m not satisfied that it rises to a real chance.
At [47] the Authority held that the applicant has a well-founded fear of persecution arising from a blood feud and land dispute. The Authority then went on to consider the complementary protection claims.
At [67] the Authority noted the applicant’s claims that his fear of harm extends to the whole of Afghanistan because of the fallout from the blood feud. The Authority was not satisfied that the applicant would face a risk as a result of that blood feud if he were to relocate to Mazar-e-Sharif at [73].
At [74] the Authority considered the UNHCR 2016 report regarding relocation within Afghanistan, and at [76] the Authority made reference to country information regarding Mazar-e-Sharif, stating:
76. […] It has witnessed some blasts and attacks, including an attack against the Indian consulate in January 2016. More recent reporting indicates that while further attacks have occurred in Mazar-e-Sharif, these continue to target the government and military, including attacks on a military base and the German Consulate.
At [90] the Authority stated that it was satisfied that Mazar-e-Sharif is under effective control of the Afghan government and:
90. […] although the situation in Afghanistan is recognised as fluid and can change quickly, there is nothing in the information before me that leads me to conclude that the situation in Mazar-e-Sharif will deteriorate in the reasonably foreseeable future.
The Authority concluded at [91] that the applicant’s relocation to Mazar-e-Sharif was reasonable:
91. Taking into account the applicant’s overall circumstances as noted above and the foreseeable livelihood and security situation in Mazar-e-Sharif more broadly (including the overall situation regarding generalised violence in Mazar-e-Sharif and the security situation throughout Afghanistan)…
When the decision is read as a whole, in my view the Authority did take into account the risk of generalised violence in Afghanistan and in Mazar-e-Sharif when considering the reasonableness of relocation to that city. This is demonstrated by the passages that I have referred to. Having regard to the descriptions of relocation risks in the country information, it is my view that the applicant has not established that the Authority has failed to undertake a statutory function when considering the matter.
Aspect 2
This part of the ground raises the question as to whether the Authority engaged in the kind of detailed consideration of whether it was practicable and reasonable for this particular individual to return to Mazar-e-Sharif as was referred to by Mortimer J in MZANX at [58]
The Authority referred to country information and the difficulties faced by people returning to Afghanistan, and generally noted at [80] the difficulties faced by returnees who have:
a)been outside of Afghanistan for some time;
b)no established local networks to vouch for them; and
c)become unfamiliar with local systems.
At [82] the Authority also accepted that there were substantial economic and other challenges in relocating to Mazar-e-Sharif notwithstanding that there was evidence of a greater range of employment opportunities in that city than elsewhere in the country. Whilst acknowledging those difficulties, the Authority held that the information before it did not indicate that the applicant would be excluded from, denied or otherwise unable to obtain and undertake work.
At [84] the Authority made reference to the applicant’s particular work skills and found that it was satisfied that he would be able to earn a livelihood, have access to necessary essential services to sustain himself, and meet the basic necessities of life. That finding does not sit with country information apparently accepted by the Authority at [77] and [78], where at [77] the Authority referred to an EASO report that documented a deteriorating security situation in Afghanistan generally from the second half of 2015.
At [77]-[78] the decision-maker states:
77. […] In Mazar-e-Sharif, casual labourers are reported to be finding less work and stagnant or lower wages and are also reported to be at a disadvantage relative to those who are known in the community and can make use of family/social networks to find work. Returnees and Internally Displaced Persons (IDP) (who are mostly former farmers) often rely on daily wage jobs which can be more limited in the autumn and winter seasons.
[78] The same report notes that only about 15% of inhabitants of Mazar-e-Sharif live above the poverty line and the city has the largest proportion of income earners who earn only an irregular income. More than half of the population spend 60% or more of its income on food and EASO presumes this is due to it being expensive, noting that food availability itself is not a problem in Mazar-e-Sharif. EASO also notes that the absorption capacity of Mazar-e-Sharif and the wider province has been stretched and that some IDP have had to return to their places of origin because they could no longer afford the rent and living expenses of Mazar-e-Sharif. This has included IDP who had come from unsecure areas.
The Minister submits that ‘a minute examination of, or elaboration upon, every circumstance of the relocation’ is not prescribed, citing BDA17 at [15] and [16]. However, given the Authority has accepted:
a)the substantial difficulties faced by people in the applicant’s circumstances; and
b)the poverty faced by most of the inhabitants of the city which is said to be a reasonable place to relocate to,
in my view, the analysis engaged in by the Authority lacks sufficient detail to support the conclusion that it is reasonable for the applicant to return to Mazar-e-Sharif. The conclusion reached by the Authority is nto open on the evidence before it: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [15].
Whilst the Authority has referred to the applicant’s personal circumstances, that reference does not sufficiently explain how the conclusion is reached that the applicant may be able to subsist in Mazar-e-Sharif.
I appreciate the importance of not engaging in merits review when dealing with these matters, but I find that the reference to the applicant’s employment history does not of itself adequately engage with the real question of whether it is reasonably practicable for the applicant to return and subsist in Mazar-e-Sharif.
The Authority failed in its review function under s 473CC of the Act to properly consider the reasonableness of relocation. Had the Authority considered that question there is a realistic possibility of a different outcome on review, therefore the error was material and jurisdictional: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45].
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 6 July 2020
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