CAN18 v Minister for Home Affairs

[2019] FCCA 1282

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAN18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1282

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to properly address the applicant’s claims – whether the Authority made a finding that was illogical or irrational – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: CAN18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1148 of 2018

Judgment of: Judge Humphreys

Hearing date: 15 May 2019

Date of Last Submission: 15 May 2019

Delivered at: Parramatta

Delivered on: 15 May 2019

REPRESENTATION

Solicitors for the Applicant: Ms A Ryburn
Ryburn Solicitors

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7267.00.

DATE OF ORDER: 15 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1148 of 2018

CAN18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is judgment in the matter of CAN18 v Minister for Home Affairs and the Immigration Assessment Authority. The applicant in this case is an Afghan national. The applicant seeks judicial review of an Immigration Assessment Authority (“the Authority”) decision of 6 March 2018 to affirm a delegate of the Minister’s decision not to grant him a Safe Haven Enterprise visa.

Background

1. The applicant’s claim for protection is summarised at paragraph 12 of the Authority’s decision. Briefly, the claims are that:

   a)He is a Hazara Shia born in Qalandari Khoaidad village in the Jaghori district of the Ghazi Province in Afghanistan.

   b)In 2000, the applicant and his family fled to Iran because his father had a land dispute with a Hazara man named JA. JA threatened the applicant’s father. There was an indication that JA had some links to the Taliban.

   c)In 2012, the applicant was deported back from Iran to Afghanistan. The applicant was only there a brief period of time, upon which he then came to Australia.

   d)The applicant fears harm on return to Afghanistan for the following reasons:

   i)   The applicant has a fear of the Taliban and JA due to the land dispute.

   ii)    The applicant has a fear of various anti-Government bodies due to his Hazara ethnicity, Shia religion and his return from a western country.

   iii)  The applicant has a fear of various anti-Government bodies due to his prolonged period in Iran and as a result, he would be considered a ‘zawark’ or spy or puppet of the Iranian regime.

   iv)   The applicant also fears he will be discriminated against on the basis of his ethnicity, his religion and as an Afghan citizen returning to Afghanistan from a western country without identity documents.

The Immigration Assessment Authority Decision

1. Despite some doubts as to the applicant’s date of birth at paragraphs 15 to 18, the Authority was satisfied the applicant was an Afghan National and that he now, as at the time of that decision, possessed an identity document. This being a ‘taskera’ or birth certificate and that the applicant was born in the particular locality set out above.

2. At paragraphs 19 to 30, the Authority found that the applicant was not a truthful witness with regard to some incidents when money had been sent in his name overseas. The Authority found that the applicant had sent money to his family in Iran, to a cousin, MJ, and a contact who is named as BA in Kabul.

3. At paragraphs 31 to 42, the Authority dealt with the applicant’s father’s land dispute. At paragraph 35, the Authority found that the land dispute did not continue past 2000 when the applicant’s family left for Iran. The Authority was not satisfied that a 17 year old land dispute would reanimate and give rise to a well-founded fear of harm should the applicant return to his home village.

4. At paragraph 43, the Authority accepted the disappearance of the applicant’s father, but that it would not affect the applicant upon his return.

5. At paragraph 46, the Authority dealt with the applicant’s return to Afghanistan. The Authority noted that the applicant would return to an area where he was born, had an extended family, being an aunt and cousins, and that it was a Hazara community which makes up approximately 40 per cent of the totality of the population.

6. At paragraphs 47 to 64, the Authority dealt with the issues in the Jaghori district. The Authority took account of country information. This information was considered in some detail.

7. At paragraph 54, the Authority concluded there was not a real chance of the applicant facing harm in his district due to his Hazara ethnicity. At paragraphs 57 to 58, the Authority notes the applicant may face some discrimination if he was going to another area as a Hazara, but that this would be of a low level.

8. At paragraphs 58 to 64, the Authority deals with the risks associated with being a returnee from a western country. The Authority noted the applicant would be returning to an area where he had an extended family. At paragraph 64, the Authority concluded that there was no real risk in terms of the threshold required by the legislation.

9. Paragraphs 65 to 79 deal with the security issues faced by the applicant travelling from Kabul to his village in the Ghazni Province. It was noted that there had been incidents and that persons who were targeted tended to be those with connections to the Government or to the international community.

10. The Authority noted credible risks but these were minimised in relation to the applicant, by a one way journey by road. The Authority noted the possibility that the applicant could, rather than travelling by road to his village, fly to Bamyan. The Authority was satisfied that if this route of travel was adopted, there was no real chance of harm.

11. At paragraph 78, the Authority concluded that there was no real chance of harm if the applicant returned to Jaghori and that the requirements under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) were not met.

12. Paragraphs 81 to 86 deal with the complementary protection requirements. For the same reasons as set out above, the Authority concluded that there was no real risk of harm if the applicant returned and as such, the criteria under s.36(2)(aa) of the Act were not met.

The Grounds of Appeal

1. The first ground asserts that the Authority failed to consider what might happen upon the applicant’s return to Kabul without a passport or identity documents. This ground also suggests that the Authority failed to deal with the claims of the applicant being persecuted as a ‘zawark’ due to the applicant’s time in Iran and the mannerisms that he had adopted as a result, even if those mannerisms were tempered by a period in Australia. It was suggested that there is a real risk of harm upon the applicant’s return.

2. Ground 2 asserts that the findings of the Authority were illogical or irrational in regards to the applicant’s ability to travel to Jaghori. The solicitor on behalf of the applicant submitted that the Authority failed to consider the applicant’s connections to the international community and suggested that these exposed the applicant to a real risk of serious harm.

3. Those submissions made reference to the case of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. In that decision, at paragraph 131, the Court concluded that it was insufficient that different minds might reach conclusions on a jurisdictional fact and that the test for illogicality or irrationality:

   …must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable simply because of the conclusion that has been preferred to another possible conclusion.

4. The applicant submits that he is a member of the international community. A logical or rational decision must involve a conclusion of real risk or serious harm. It was put to the Court during the course of the submissions that the applicant met the criteria of the international community because he had been outside of the country for a period of time, including four years in Australia.

Ground One

1. The first limb concerns the alleged failure of the Authority to consider the applicant’s fears based upon the applicant’s return to Afghanistan without a passport. It is common ground that the applicant now has a ‘taskera’ and he would not be without any documents. Moreover, this claim was not made at any time prior to the applicant coming into this Court. The fact is that the applicant had previously been returned to Kabul and if he had fears, one would have logically expected that they would have been made at the time he was interviewed.

2. I am not satisfied that there is a requirement by the Authority to consider this unarticulated claim because it did not arise squarely before the Authority. I agree with the first respondent’s submission that the task of the Authority is not to discover potential grounds. I refer to NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 which is a decision of Allsop J where it was stated in paragraph 15:

   Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact, be appreciated by the Tribunal or, if it is not, arise sufficiently from material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to every day decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims that might be made which might be made, but which have not been, and then subjecting them to further analysis as to assess their legitimacy.

3. The applicant had previously been the subject of a deportation. If the applicant had fears, one would have imagined he would have articulated them. Further, I am comforted by the fact that by the time the assessment process had finished, the applicant was no longer in a situation whereby he had no identification documentation. The applicant had been able to obtain a ‘taskera’. If the applicant was returned to Afghanistan, he would not be without identification documents. I am satisfied that the issue, to the extent that it is required to be dealt with, was in fact dealt with by the Authority and that no jurisdictional error arises in that regard.

4. The second limb of that issue was the fact that the applicant may be classified as a ‘zawark’. This was clearly addressed and rejected by the Authority at paragraphs 44 to 46 of the decision. It is not for this Court to engage in merits review. The Authority clearly considered it and found that any risks were tempered by his time in Australia.

5. Accordingly, no jurisdictional error arises in relation to this issue.

Ground Two

1. In considering this ground, it is important to note that the Court cannot engage in merits review or fact-finding. All the Court can do is look at the findings within the boundaries as set out in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109. Ground two relates to the applicant’s connections to the international community, the profile the applicant might have and whether or not the applicant is at risk when travelling on roads within Afghanistan. Again, I emphasise the very high level of illogicality or irrationality required before a conclusion can be made by a Court such as this, to set aside the decision on that basis.

2. I am satisfied that the Authority turned its mind to the risk the applicant faced as a returnee to Afghanistan after some years abroad and then his necessity to travel to his home town. The Authority found that the applicant’s connection with the international community had been limited, but that he was an Afghan citizen and is not in any way connected with either an international organisation operating within Afghanistan or indeed, the Afghanistan Government.

3. I am not satisfied that the reasoning was illogical or irrational in terms of the risks that the applicant faced. I am comforted in this conclusion by the fact that the Authority considered an alternative travel means within Afghanistan which would limit any risk. That being to fly to Bamyan and then travel by road to Jaghori.

4. This is a clear indication that the Authority considered the risks and was satisfied that they could be reduced to below the threshold required by the legislation to warrant the grant of a protection visa.

5. I am not satisfied that the reasoning is so illogical or irrational in law such as to warrant the decision being set aside on that basis.

6. Accordingly, the ground cannot be sustained.

Conclusion

1. The application is, therefore, dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  28 May 2019