CAF17 v Minister for Immigration

[2018] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1351

Catchwords:
MIGRATION – Application for protection visa – whether it is reasonable to relocate to Kabul – whether all circumstances considered – whether mental trauma inferred despite not being actually raised – argument based on incorrect premise – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.36(2B)

Cases cited:

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant: CAF17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 429 of 2017

Judgment of: Judge Vasta

Hearing date: 21 May 2018

Date of Last Submission: 21 May 2018

Delivered at: Brisbane

Delivered on: 21 May 2018

REPRESENTATION

Counsel for the Applicant: Mr Karp

Solicitors for the Applicant: Fisher Dore Lawyer

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 8 May 2017 and the Amended Application filed 4 May 2018 be dismissed.

2. That the Applicant pay the First Respondent’s costs in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 429 of 2017

CAF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 1 November 2012, the Applicant, CAF17, arrived in Australia as an unlawful maritime arrival.  He participated in an arrival interview, a further interview after that and an interview with the delegate after he had lodged an application for a Safe Haven Enterprise Visa.  He has also submitted to the Department two statutory declarations. 

2. In short, his claims are that he was born in the Sheikh Ali district in Parwan Province in Afghanistan and that, in 1998, he was a truck driver contracted by a political party to deliver food to frontline military groups. 

3. He said that he had this job for about 14 months and at the end of the contract he moved to the city of Pul-e Khomri in northern Afghanistan for about six months. 

4. Whilst he was there, the Taliban stole his truck and murdered one of his brothers.  A few weeks later the Taliban started shelling that city and he and his family escaped to Mazar-i-Sharif.  Three months after that, fighting broke out in Mazar-i-Sharif.  The town was then captured by the Taliban and came under their control. 

5. The Applicant and his family then fled the city escaping the subsequent massacre of Hazaras, but his youngest brother, who had been dispatched to tell another relative of what was happening, was not heard of again. 

6. The Applicant claimed the family then returned to Pul-e Khomri and there he was arrested several times by the Taliban and beaten simply because he was Hazara. 

7. In 2000, he and his family left Afghanistan and they were able to live in Pakistan for about six years. 

8. After the establishment of the Karzai government in Afghanistan around 2006 the Applicant and his family went back to Afghanistan. 

9. The Applicant said that he bought two trucks and he and another brother were self-employed delivering goods between his village and Kabul and Bamyan and Yakawlang. 

10. However, by 2009, the Taliban had started establishing another base near his village.  The local warlords and criminals began connecting with the Taliban and reporting to them about who, in the village, appeared wealthy. 

11. The Taliban then started extorting people and killing those who wouldn’t pay.  The Applicant said that he was a victim of such an extortion and, when given the threat to give, what could be euphemistically termed, a “religious donation” of about two million Afghanis, the Applicant refused and sought help and protection from the governor and the police, but to no avail. 

12. He ended up receiving a phone call from someone who seems to be associated with the Taliban who told him to talk to his brother.  He then heard gunshots, the phone was turned off, and the brother’s body was dropped in front of his home the next day. 

13. The Applicant left that village and took his family to Kabul and the Applicant ended up fleeing to Australia. 

14. When he arrived in Australia, he said, at his entry interview, that he was the only survivor of four brothers:  the one murdered in 1998 by the Taliban, the brother who went missing in 2000 before they fled to Pakistan and then the third brother murdered by the Taliban in about 2010. 

15. In the second statutory declaration that the Applicant made, he said that he had been a truck driver almost all his life, apart from the time in Pakistan.  He was well-known as a truck driver in Bamyan and Kabul and, that if he returned, local people would report him to the Taliban. 

16. Given all of those circumstances, he applied for a Safe Haven Enterprise Visa.  The application was refused by the delegate and, because this was a fast tracked decision, the matter did revert to the Immigration Assessment Authority (“the IAA”).  The IAA gave their decision on 7 April 2017. 

17. In that decision, the IAA had thoroughly gone through all of the circumstances and looked quite extensively at country information. 

18. In short, the IAA found that the Applicant could return to Kabul and that there would not be a well-founded fear of persecution or serious harm if he were to return to Kabul.  The IAA was not satisfied the Applicant would face a real chance of serious harm in Kabul and so, therefore, the Applicant did not meet the requirements of the definition of refugee. 

19. The IAA then went through to the complimentary protection assessment. 

20. The IAA had to be satisfied “that Australia has protection obligations because there are substantial grounds for believing that as a necessary and foreseeable consequence of the person being removed from Australia to proceeding to home country there was a real risk that the person would suffer significant harm”. 

21. Given the history of the Applicant, the IAA came to the conclusion that the Applicant would face a real chance, and therefore a real risk of being abducted and/or killed on the roads, if he were to attempt, within the foreseeable future, to return to his home area. 

22. The IAA considered that such harm would amount to significant harm. However, s.36(2B) of the Migration Act 1958 (Cth) (“the Act”) has it that “there is taken not to be a real risk that a non-citizen would suffer significant harm in a country if it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen would suffer significant harm”.

23. Having come to the conclusion already when assessing the refugee criteria, that the Applicant would not face a real chance of harm in Kabul, the IAA then looked at whether it would be reasonable for the Applicant to relocate to Kabul. 

24. From paragraphs 47 through to 55 of the reasons, the IAA thoroughly looked at the practicalities of the Applicant relocating to Kabul.  It took into account whether he would suffer discrimination in the employment market because he is a Shia Hazara but came to the conclusion that they were not satisfied that he would face a real risk of suffering discrimination of a level that would deprive him of the capacity to subsist or that would otherwise arbitrarily deprive him of his life. 

25. The IAA was not satisfied that such treatment would result in pain or suffering; or severe pain or suffering that would amount to cruel or inhuman treatment; or punishment or treatment that would amount to extreme humiliation; or that would amount to torture; or result in his being subject to the death penalty. 

26. The IAA also was not satisfied that the Applicant would face a real risk of suffering harm of any other kind in Kabul. 

27. The IAA assessed the claims that if he returned to live in Kabul he would find work as a truck driver and this would require him to travel outside the city and would expose him to harm.  The IAA found that it accepted that he may obtain work driving a truck or heavy vehicle of some kind upon return to Kabul, however given that the Applicant has travelled to another country and moved his family to Kabul in order to remove himself and his family from the threats and fears he has outside the capital, the IAA did not accept that he would take on employment that would require him to drive outside the capital. The IAA did not accept that there were not jobs that were available in the trucking transport industry whose tasks were confined to Kabul. 

28. The IAA then looked at whether it was reasonable for him to relocate to Kabul because of a lack of social connections.  The IAA took into account that there are a number of reports that talk about the difficulty of relocation when one has no social supports, and the IAA took some comfort in the reports from the UNHCR and from DFAT.

29. But the IAA noted that the Applicant had submitted that he has a number of dependants in Kabul, including his mother, his wife, three of his four children, his deceased brother’s wife and her daughter.  The IAA noted that he would be coming to live with a family that is already established in a Hazara suburb rather than coming entirely newly to the city without lodgings or connections. 

30. The IAA also looked at what the Applicant had said in his interview where he commented that his family in Kabul were financially well situated; even telling the delegate that his family in Kabul drew their money from savings held in Kabul and that, although he, the Applicant, had been working in Australia for some three months, he had sent his family no money and had no plans to do so; and was, in fact, considering having his family send money to him so that he could buy a stake in a wrecking business which currently employs him as a tow truck driver. 

31. The IAA said that the fact that he had savings of this kind contributed to the delegate’s finding that it was reasonable for him to relocate to Kabul and he could do so by joining his family in the capital. 

32. The IAA looked, also, at a submission that the Applicant had made that showed that he had, on one occasion after, it would seem, the delegate had made the decision, sent money to Afghanistan, however the IAA had doubts as to whether this was anything that would show that “the Applicant’s family did not have money and the Applicant needed to support them”. 

33. The IAA looked at the employment situation in Kabul. The IAA have looked at personal circumstances about the Applicant’s daughter suffering a skin disorder, and the wife of the Applicant suffering from mental health issues, in particular anxiety. 

34. The IAA noted that there is free public health available in Kabul and, whilst it is basic, it is better in Kabul than in other areas of Afghanistan, notwithstanding that the hospitals in Kabul are under stress owing to the city’s population expansion.  Given the financially favourable aspects that his family have, there would be no problem in the wife and daughter seeking, or being able to fund, medical treatment. 

35. The IAA even looked at the infrastructure and what the growth in population is doing to the infrastructure, but found that there was no threat to the Applicant because of his family already living in the established suburb of Kabul. 

36. The IAA concluded that, having regard to the Applicant’s overall circumstances and the livelihood and security situation in Kabul, more broadly, including the overall situation regarding generalised violence in Kabul, it was satisfied that it would be reasonable for the Applicant to relocate to and remain in Kabul which was an area of the country where there would not be a real risk that the Applicant would suffer significant harm. 

37. The Applicant applied to this Court on 8 May 2017, asking this Court to review the decision.  The application, as before me, has two grounds. The first ground is:

    “1. The second respondent failed to consider whether, given the applicant’s personal circumstances, the danger to him in Kabul made relocation to Kabul unreasonable, notwithstanding that he would not face a real chance of serious harm there.

    Particulars:

    (a) The applicant’s personal circumstances included the murder of his two brothers by the Taliban, the disappearance of a third brother, his having to flee the Taliban twice and his being beaten and threatened by the Taliban over a period of years. 

38. The second ground which is really part of the first one is:

    “2. The second respondent erred in treating ‘serious harm’ as the only level, or kind of harm which could affect the reasonableness of relocation.”

39. What has been submitted to me, in the course of argument today, was that the IAA had not done what the Courts have asked those making decisions under the Act to do. The submission relied upon what the High Court said in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at paragraph 24:

    “…What is ‘reasonable’ in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”

40. In effect, what has been submitted here is that, whilst the IAA may have been extremely thorough in looking at all of those matters that I have previously enumerated, it did not look at the personal circumstances of the Applicant.  Those circumstances are, that the Applicant must have been affected by the fact that over the past 18 years he has had one brother murdered; another brother go missing; a need to flee Afghanistan and go to Pakistan; a return to Afghanistan; systematic beatings by the Taliban; extortion by the Taliban; having another brother murdered by the Taliban; and a need to flee again from the Taliban and relocate to Kabul which then led to the Applicant himself fleeing and coming to Australia as an unauthorised maritime arrival. 

41. Because the IAA has found that there is truth to all of that history, the submission is that it was incumbent upon the IAA to consider whether it was still reasonable for the Applicant to relocate to Kabul given everything that he has endured and suffered. 

42. In effect, it was submitted that there must have been some psychological trauma meted out to him because of those experiences.  The submission continued that, whilst the IAA has looked at all of the risks in physical terms, it has not turned its mind to whether there were risks in mental terms when assessing whether it was reasonable for the Applicant to relocate.  It has been submitted that this issue is raised and therefore it had to be considered. 

43. It was put to me that practicalities, as the IAA needed to assess, must also depend upon a state of mind. 

44. When it was that I asked the Applicant how this was raised, I was told that it was a matter of common sense that no person could have endured what the Applicant had endured over the last 18 years without there being some measure of trauma to the psyche.  It was because it was so obvious, the IAA should have considered the matter. 

45. I am not convinced that this issue was, in fact, raised. 

46. The statutory declarations, that the Applicant has submitted, are instructive.  Firstly, the statutory declaration made on 18 January 2016 which is at page 70 of the Court Book, details under a heading “Country to which I do not want to return”, answer, paragraph 4:

    “I am afraid to return to Afghanistan.”

    Then there is a recitation of all of the matters that I have already gone through.  Under a heading “What I fear may happen if I return to that country”, paragraph 18:

    “If forced to return to Afghanistan I fear I will be targeted, attacked, abused and/or killed.”

47. Under the heading “Who I think will harm/mistreat me if I was forced to return to that country”, 19:

    “If forced to return to Afghanistan I feel I will be harmed/mistreated by the Taliban and there have been numerous instances where Hazara Shia people are targeted by the terrorist groups in various parts of Afghanistan.”

    He gave similar answers then as to why he thought he would be harmed/mistreated if he returned to the country and why he thinks the country’s authorities will not protect him if he is forced to go back there. He talks a great deal of his fears.   

48. In a subsequent statutory declaration that was made on 15 August 2016 and is at page 125 of the court book, again, the Applicant talks of his family; talks of the hopes about bringing them here to Australia; talks about his safety; and talks about his family problems but says nothing about any problem to himself. 

49. As can be seen from the IAA reasons that I have already referred to, at paragraph 53, the IAA talks about the mental health issues of the wife and her anxiety.  The IAA then talked about the situation in Kabul with respect to dealing with the wife’s mental health issues. 

50. Not once was it said to the IAA that the Applicant himself had mental health issues or that there would be anything that would mean that he was at risk of serious harm, in a psychological manner, which would make it unreasonable for him to relocate to Kabul. 

51. Whilst it has been submitted that such matters are simply common sense and are obviously raised because the IAA has already gone through all of those matters, I do not believe that such is the case. 

52. What is being submitted here is an almost patronising or paternalistic assessment.  It pre-supposes that the mental trauma that would be suffered by a person in the position of the Applicant, should be judged upon the mental trauma that one would think would occur to someone who had lived in a country, such as Australia, if both suffered through the same events. 

53. I am not of the view that that is logical. 

54. I have no doubt that, if someone in Australia had been subjected to the sorts of things that the Applicant has been subjected, there would be all sorts of trauma suffered.  And there would also be lots of evidence as to counselling or psychological/psychiatric intervention.

55. But that is because such a conclusion is based on common experience or “common sense” of someone who has been brought up in a country where such situations do not occur and are absolutely abhorred by the general population. 

56. To transpose those feelings, and infer that they apply to all other countries from which refugee applicants come, is making a very grave assumption that may not actually be the case. In fact, it reeks of the myth of Western or Colonial superiority; “if those events would affect me, then they must affect you”. That myth was shattered a long time ago.

57. I reject the argument that the issues of mental health of the Applicant were raised on the evidence.

58. It seems to me, then, when one looks at everything that was put before the IAA, that the IAA has considered and looked at all circumstances.  It seems to me that when one looks at all of the material before the IAA, any reasonable inference that can be drawn as to what serious harm or what is reasonable in terms of practicalities when looking at whether the Applicant could relocate to Kabul, have been considered. 

59. It is clear to me that the matters that had been submitted to this Court as having not been considered by the IAA were not matters that were raised fairly and squarely on the evidence. 

60. Therefore I do not find that there is any jurisdictional error. 

61. I note the statements of the Applicant that this is a matter that will now have to be tested by the higher Courts. I do welcome their adjudication on this issue, but from my looking at all the authorities, and whilst I have not named them all in this ex tempore judgment, I have had consideration of what they have said in coming to my conclusion, there is no precedent for the argument advanced by the Applicant. 

62. I dismiss the application with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 June 2018