BYH16 v Minister for Home Affairs

[2018] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYH16 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2051

Catchwords:
MIGRATION – Immigration Assessment Authority – applicant for a Safe Haven Enterprise visa – whether the Authority failed to consider a claim or integer of the applicant’s claims – whether the Authority misapplied or misconstrued the real chance test – no jurisdictional error made out – amended application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DE, 476.

Cases cited:
ACX15 v Minister for Immigration and Border Protection (2017) 322 FLR 247.
BOT15 v Minister for Immigration and Border Protection [2018] FCA 654.

Applicant: BYH16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 4033 of 2017

Judgment of: Judge Street

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

Counsel for the Applicant: Mr S Tully

Solicitors for the Applicant: Rybun Solicitors

Counsel for the Respondents: Mr B Lim

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 $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4033 of 2017

BYH16

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 20 November 2017 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 arrived in Australia on 27 August 2012 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise visa on 29 July 2015.

3. The applicant claimed to fear harm in circumstances where he had an older brother, N, who had come to Australia as a refugee in 2001. The applicant claimed that prior to returning to Afghanistan from Quetta in 2005, the applicant’s father contacted a man who was looking after and occupying the family property in a particular village. During the conversation the man advised the applicant’s father that a person named J, who was from the Talkhak area, had been encroaching and planting on the family’s land. J lived a certain distance from the family’s home.

4. The applicant doubts the version of events told to him by the bus company in relation to the circumstances of his father’s death and suspected his father was the only person killed and that it was a targeted attack. The applicant suspects that J may have been involved in his father’s death. The applicant’s brother, R, went to Afghanistan in May or June 2014 and saw that J was living in the applicant’s family home in the particular village and farming their land. R was granted refugee status by the United Nations in Indonesia in 2015.

5. On 11 May 2016, the delegate refused to grant the applicant a Safe Haven Enterprise visa.

The Authority

1. On 12 May 2016, 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.

2. The applicant did put on new information and submissions that were considered by the Authority. The Authority’s reasons expressly refer to having regard to the material given by the Secretary under s 473CB of the Act. The Authority identified the background to the visa application and referred to the submissions and material provided to the Authority and considered the same in relation to the requirements of s 473DD of the Act.

3. In relation to the applicant’s brother, R, being granted United Nations High Commissioner for Refugees (“UNHCR”) refugee status in 2015 and his brother being granted protection in Australia, the Authority noted this information would have been known to the applicant prior to the Safe Haven Enterprise visa interview and/or prior to the making of the delegate’s decision. The Authority was not satisfied that it could not have been provided to the Minister before the delegate made his decision.

4. The Authority was satisfied that this information and the accompanying statutory declaration from the brother, N, is credible personal information which was not previously known to the delegate and, had it been known, may possibly have affected the consideration of the applicant’s claims. The Authority referred to the submission that R’s status in Indonesia is pertinent and that the Authority should consider N’s immigration documents and history because he is more knowledgeable about the family’s refugee story and his departmental records outline the family’s situation prior to the family’s departure from Afghanistan.

5. The Authority referred to the new information evidencing that N was granted temporary protection in Australia in 2001 and permanent protection in 2005. The Authority referred to the applicant being upfront in the Safe Haven Enterprise visa application that he had a brother residing in Australia, and the Authority noted that the brother’s status was not explored in the delegate’s Safe Haven Enterprise visa interview. The Authority referred to the applicant’s claims that his family fled Afghanistan together in 2000, and that his brother came to Australia and that his remaining family went to Pakistan. Reference was made by the Authority to N’s statutory declaration alleging that the applicant’s circumstances were the same as what the brother, N, had experienced. The Authority was satisfied there were exceptional circumstances for considering this information.

6. The Authority also referred to taking into account more recent updated country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims and evidence. The Authority found the applicant was a Shia Hazara male from a particular district in the Ghazni Province. The Authority noted the applicant fears he will be killed or persecuted by the Taliban and Al‑Qaeda on account of his Hazara ethnicity and his Shia religion, and that the applicant also fears being harmed because he came to Australia and sought asylum in Australia.

7. The Authority correctly identified the relevant law and accepted that the applicant and his family left Afghanistan in 2000 due to the proximity of the Taliban to his home region in the Ghazni province. The Authority did not accept the applicant’s claim that his father was beaten by the Taliban or that he had an otherwise adverse profile with the Taliban. The Authority identified having concerns with the applicant’s claim his father was killed in a Taliban attack in 2005 while travelling on a bus between Pakistan and Afghanistan. The Authority identified having concerns with the authenticity of the father’s death certificate. The Authority was prepared to accept that it was plausible the applicant’s father was killed by the Taliban on the road between Pakistan and Afghanistan in 2005 and also took into account the possibility that the father was killed in a motor vehicle accident or as a result of generalised violence. The Authority accepted the applicant’s claim that he travelled to Afghanistan for one week in 2007 to obtain a Taskera.

8. The Authority referred to the applicant’s new claims. The Authority then turned to having accepted claimed events of early 2015 relating to the applicant and being mindful that the applicant made no reference to J, who he claims was in dispute with his father on a land issue for many years. The Authority noted the applicant’s brother, N, made no reference to his father being involved in a land dispute with a Hazara person named J in his statutory declaration. The Authority referred to the delegate raising a concern with the applicant that his written claims made no reference to the land dispute with J, which had been ongoing before his father’s death in 2005. The Authority found the applicant’s claims that his family were or are involved in a land dispute in a particular district unconvincing.

9. The Authority referred to considering cumulatively the above inconsistencies and other evidence, leading the Authority to conclude that the applicant had fabricated these claims in order to enhance his application for protection. The Authority was not satisfied the applicant’s brother travelled to the particular district, or that he was confronted by a Hazara man named J in Afghanistan as claimed. The Authority did not accept the applicant and his family were involved in a land dispute in a particular district.

10. The Authority referred to acknowledging that the applicant’s brother, R, was issued a UNHCR refugee card in Indonesia in April 2016. The Authority found there was no information provided detailing the basis upon which the card was issued. In light of the evidence discussed by the Authority, the Authority was not satisfied the applicant’s brother was granted the refugee status by the UNHCR on the basis of a land dispute in a particular district, or because he travelled to Afghanistan, or because he was threatened by a Hazara man named J. The Authority rejected the applicant’s representative’s assertion in the submission to the Authority that R’s testimony had been accepted by the UNHCR. The Authority accepted that the applicant’s brother, N, was granted permanent protection in Australia in 2005. The Authority referred to the applicant having raised no claim that he fears harm in Afghanistan on account of his brother’s profile in Afghanistan some 17 years ago. The Authority referred to there being no country information before the Authority that indicates that the conflict that occurred in the particular district at that time is ongoing.

11. The Authority found, on the information before the Authority that it was not satisfied the applicant faces a real chance of serious harm on account of either of his brothers’ previous activities or their profiles in Afghanistan. The Authority was not satisfied that the applicant faces a real chance of serious harm in Afghanistan on account of the past events identified/accepted by the Authority or the profile of his brothers, now or in the reasonably foreseeable future.

12. The Authority referred to the applicant’s claim that if he returned to Afghanistan he will be persecuted or killed by the Taliban and Al‑Qaeda on account of his Hazara ethnicity and his Shia religion. The Authority referred to country information and identifying particular profiles who are at risk, rather than Shia Hazaras. The Authority was not satisfied there is a real chance the applicant would face harm from the Taliban or other insurgent group, such as Islamic State or Al‑Qaeda, in his home region for reason of his ethnicity or his religion, or as a Shia Hazara, or for any other reason.

13. The Authority referred to more recent reporting in relation to Hazaras and Shias. The Authority referred to attacks on the roads and the security situation on the roads. The Authority was not satisfied the applicant faces a real chance of harm on the basis of being Hazara on the roads between Kabul and his home district, or in or around Hazarajat. While the absence of recent attacks against Shia Hazara population in Ghazni province, or on the roads between Kabul and the applicant’s home region, it does not preclude the possibility of future attacks. The Authority nonetheless considered the chance that the applicant would be involved in an incident or attack on the road, or put at additional risk because of his ethnic or religious profile in such an attack, to be remote. The Authority was satisfied the applicant is able to safely access his home area.

14. The Authority was not satisfied on the evidence that returnees like the applicant, who have lived in a western country like Australia for a significant period and sought asylum, are targeted by the insurgents or that the applicant would be targeted on return as a Shia Hazara, or as a returnee failed asylum seeker. The Authority was not satisfied that any societal discrimination the applicant may be subjected to would prevent him from obtaining employment or manifest itself in such a way that it would constitute serious harm. The Authority was not satisfied there is a real chance the applicant faces serious harm in his home area, or surrounding area, on the basis of his religious or ethnic profile, or as a Shia Hazara. The Authority also expressly referred to having considered the prospect of the applicant suffering any serious harm due to his profile as a returnee from the west or on account of his asylum application in Australia to be remote.

15. The Authority expressly referred to having had regard to the applicant’s own circumstances and the absence of any connection to those with a risk profile and being satisfied that there is not more than a remote chance of the applicant being harmed in generalised violence on his return to his home area, including travel from the airport in Kabul. The Authority was satisfied that any chance of harm that the applicant may face in relation to generalised violence would also not be for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather as a consequence of any ongoing insurgency and insecurity in the country overall. The Authority accordingly found that s 5J(1)(a) and s 5J(4)(a) of the Act were not satisfied.

16. The Authority referred to having found there was no real chance of the applicant being seriously harmed in his home district on the basis of his religion, his ethnicity, as a returnee asylum seeker, or for any other reason. The Authority was satisfied the applicant would be able to subsist if returned to his home region. The Authority was not satisfied the applicant has an association or proximity with those other risk profile groups, nor is there any suggestion that the applicant would have such an association or proximity when he returns to the country.

17. The Authority found the applicant did not have a well‑founded fear of persecution within the meaning of s 5J of the Act and found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act and the applicant did not meet the criteria under s 36(2)(a) of the Act.

18. The Authority turned to the issue of complementary protection and referred to having regard to the applicant’s circumstances, both individually and cumulatively, in finding that the applicant does not face a real risk of suffering significant harm. 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 the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act  and affirmed the decision under review.

Before this Court

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

   1. The IAA failed to consider the review material provided to it as required by s 473DB of the Migration Act 1958 (Cth) because it failed to consider a claim or an integer of the applicant’s claims.

   Particulars

   (i) The applicant claimed that his brother R had been granted refugee status by the United Nations High Commissioner for Refugees (UNHCR) (reasons for decision at [5]).

   (ii) In its reasons for decision, the IAA:

   a. was satisfied that there were exceptional circumstances for considering this information (at [21]);

   b. accepted that R had been issued with a UNHCR refugee card (at [38]);

   c. only referred to that evidence to reject the applicant’s claim that he and his brother had been involved in a land dispute or fear persecution from a Hazara man named J (at [38]);

   d. was not satisfied that the applicant faced a real chance of harm “on account of either of his brothers’ previous activities or their profiles in Afghanistan” (at [38]);

   e. accepted that the Taliban and other insurgent groups targeted persons having a profile of association with the international community (eg at [45], [47], [49], [61]); and

   f. did not accept that the applicant had any identifiable affiliation with international organisations or any connection to those with a risk profile (at [52], [55], [61]).

   (iii) In these circumstances, the IAA failed to consider whether the applicant had a well-founded fear of persecution from the Taliban and other insurgent groups by reason of being a family member of an individual associated with, or perceived to be supportive of, the international community.

   2. The IAA misapplied or misconstrued the real chance test.

   Particulars

   (i) In its reasons for decision, the IAA:

   a. stated that country information indicated an absence of recent attacks in the Hazarajat (at [51])

   b. accepted the possibility of future attacks in the Hazarajat (at [51])

   c. accepted that sporadic insurgent attacks occurred in and around the Hazarajat (at [61]).

   d. considered the motivation for insurgent attacks on Hazars travelling by road from Kabul to the Hazarajat to be unclear (at [49]-[50]); and

   e. nevertheless found that the chance of the applicant being involved or put at additional risk in such an attack was remote (at [51]).

   (ii) The IAA failed to undertake the reasonable speculation required by the real chance test with respect to future events: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575.

Ground 1

1. Mr Tully of counsel on behalf of the applicant submitted that there was a claim or integer of the applicant’s claim that the Authority had failed to address. Mr Tully advanced that the Authority had failed to consider whether the applicant had a well‑founded fear of persecution from the Taliban or other insurgent groups by reason of an individual associated with or perceived to be supportive of the international community. Mr Tully accepted that no such claim expressly arose on the material before the Authority.

2. The argument developed by Mr Tully was to the effect that a correct application of the test in ACX15 v Minister for Immigration and Border Protection (2017) 322 FLR 247 at [17] could, in the circumstances of this case, be satisfied. Mr Tully referred to the UNHCR card of the applicant’s brother, R, who had been granted a card by the UNHCR in Indonesia in 2015. Mr Tully took the Court to the Authority’s reasons in relation to the profile of persons who may be at risk, including the reference to those who identified as having associations with the government or international community facing a higher risk of being targeted. Mr Tully referred to the Authority’s reasons in paragraph 38 and contended that the finding was referring to the two brothers’ profiles and activities, being the previous activities and the profiles in Afghanistan. Mr Tully referred to other paragraphs in the Authority’s reasons and country information indicating that people who are identified as having association with the international community faced a high risk of being targeted.

3. Mr Tully submitted that it was clear the Authority had accepted the applicant had a brother named R who had been recognised as a refugee by the UNHCR and referred to the country information in relation to targeting the individuals associated with or connected with the international community. Mr Tully contended the applicant is related to an individual associated with the international community by virtue of the brother R’s recognition as a refugee by the international organisation. Mr Tully contended that a claim to that effect arises clearly on the material before the Authority, having regard in particular to the Authority’s own findings and reasons. Mr Tully submitted that the Authority failed to properly, genuinely and realistically consider the applicant’s claims and supporting evidence and/or discharge its statutory duty required in its task of reviewing material in respect of the alleged claim.

1. I do not accept that any such claims advanced by Mr Tully fairly arises on the material before the Authority. The claim advanced by Mr Tully in relation to the applicant having a family member, being his brother, R, allegedly being an individual associated with or perceived to be supportive of the international community reflects the ingenuity and creative activity of counsel and would have required such constructive and creative activity by the Authority. No such claim fairly arose on the material before the Authority.

2. On the face of the Authority’s reasons, the Authority properly and genuinely and realistically considered the applicant’s claims and made adverse findings dispositive of the claims that were open to the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Tully submitted that the Authority had failed to apply the real chance test looking to the reasonably foreseeable future. Mr Tully again took the Court to the Authority’s reasons and, in particular, focused on the last sentence of paragraph 51, where the Authority had said the Authority was satisfied the applicant is able to safely access his home region. Mr Tully referred to the decision in BOT15 v Minister for Immigration and Border Protection [2018] FCA 654 and contended that the Authority had made a similar type of error in the circumstances of the present case by focusing only on the present and not addressing the future.

2. The Authority’s reasons are not to be read with a keen eye for error. The Authority’s reasons must be read as a whole and, in particular, in paragraph 51, where the Authority refers to the present tense in respect of safely accessing the home region, it is apparent that the Authority was looking to the possibility of future attacks and the Authority expressly used the words “future attacks”.

3. Further, the Authority’s reasons in considering the applicant’s claims, as referred to above, expressly referred to the foreseeable future in paragraph 39. The Authority correctly identified the relevant law and the Authority also referred to the future in its reference to the adverse finding in respect of complementary protection in paragraph 64. Further, paragraph 48 is an express reference to looking towards the future.

4. I do not accept that the Authority failed to correctly apply the relevant test in looking at the future in respect of the possibility of future attacks in the applicant’s home region. I do not accept that the Authority failed to undertake the necessary speculation required in relation to the real chance test in respect of future events. The Authority’s reasons as summarised above reflect a correct application of the real chance test and there was no misapplication or misconstruction of the test as alleged in ground 2. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

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

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 September 2018