CCF16 v Minister for Immigration

[2017] FCCA 2826

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2826

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s fears found not to be well founded – whether the Authority made findings which were irrational or not based on evidence considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 417, 473CB

Cases cited:

Minister for Immigration v Eshetu (1999) 197 CLR 611

Minister for Immigration v SZMDS (2010) 266 ALR 367

Minister for Immigration v SZSCA (2014) 254 CLR 317

NAHI v Minister for Immigration [2004] FCAFC 10

Applicant: CCF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2154 of 2016

Judgment of: Judge Driver

Hearing date: 17 November 2017

Delivered at: Sydney

Delivered on: 17 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Donald of Sparke Helmore

ORDERS

1. The application as amended on 2 February 2017 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2154 of 2016

CCF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 July 2016.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed 10 November 2017. 

Background

1. The applicant, a citizen of Afghanistan, arrived in Australia on 12 November 2012 as an offshore entry person.  On 10 August 2015, the applicant lodged an application for a protection visa known as a safe haven enterprise visa (SHEV).  He attended three interviews with the delegate on 25 September 2015, 29 September 2015, and 26 May 2016.

2. On 3 June 2016, the delegate refused to grant the applicant a SHEV and referred the decision to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Migration Act).

3. On 15 July 2016, the Authority affirmed the delegate’s decision.

The applicant’s claims for protection

1. The applicant claimed that he was a Sunni Hazara, born in Ghorband district where he lived with his family until 1999 at which time he moved to Kabul.  At that time his family remained in Ghorband district[1].

   [1] Court Book (CB) 49 and 83 at [9]

2. The applicant claimed that in 1995, his father was involved in the killing of the leader of an opposing local political group, and that in 1996, members of the group killed the applicant’s father in retaliation.  In 2009 Ghulam Rasool, the son of the leader, returned to Ghorband and began to threaten the families of those involved in the killing of his father in 1995.  In 2011, Ghulam Rasool killed family members of another individual who was involved in the killing of Ghulam Rasool’s father, causing the applicant to move his family to Kabul in 2012 where they lived in hiding.  After his family left Ghorband, the family home was burned down, and people visited his shop in Kabul to enquire about him.

3. The applicant further claimed that he feared the Taliban, who would impute him with a pro-government opinion on the basis of his Hazara ethnicity, and would kill him.  He claimed that it was not safe for him to live outside of Kabul as the country was controlled by the Taliban.  However, the applicant also claimed that whilst living in Kabul, he was constantly fearful for his and his family’s safety because of the frequent suicide bombings.

The Authority’s decision

1. The Authority had regard to the material referred to it by the Minister’s Department under s.473CB of the Migration Act[2], as well as legal submissions received from the applicant’s representative[3].

   [2] At [3]

   [3] At [4]

2. The Authority identified Afghanistan as the receiving country for the purposes of the Migration Act, and found that as the applicant had been living in Kabul since 1999, his family moved there in 2012 and his family home in Ghorband had been burned down, he would return to Kabul if returned to Afghanistan[4].

   [4] At [10]-[12]

3. Turning to the applicant’s claims, the Authority accepted as plausible the death of his father due to his father’s involvement in the killing of a local political figure[5].  However, it did not accept that the applicant was subsequently targeted by Rasool[6].  In so finding, the Authority noted the following:

   a)it was not plausible that Rasool waited until 2009/2010 to threaten the applicant with revenge for the killing of his father some 15 years earlier[7];

   b)having regard to country information regarding blood feuds, it was implausible that Rasool would exact revenge on the applicant, given that revenge had been exacted already by the killing of the applicant’s father[8];

   c)while Rasool’s threats began in 2009 or 2010, the applicant did not relocate his family to Kabul, or leave Afghanistan himself, until 2012[9];

   d)the applicant was able to travel freely between Kabul and Ghorband on a weekly basis and remain in Ghorband each weekend between 2009 and 2012, without being harmed or threatened with harm[10]; and

   e)despite his claimed fear of Rasool, the applicant did not move his family to Kabul until 2012[11].

   [5] At [15]

   [6] At [16]

   [7] At [16]

   [8] At [17]

   [9] At [17]

   [10] At [18]

   [11] At [19]

4. Whilst the Authority accepted that the applicant’s home had been burned down, it did not accept that this occurred in the circumstances described by the applicant[12].  Nor did it accept that the applicant went into hiding in Kabul, or that random individuals enquired about him at his shop[13].

   [12] At [20]

   [13] At [20]

5. The Authority noted country information that Hazaras were the largest ethnic group in Kabul, at an estimated 40 to 50 per cent of the population[14], and that ongoing insurgent attacks in Kabul were focussed not on Hazaras but against high profile targets[15].  The Authority found that the applicant did not have such a profile[16].  Accordingly, the Authority found that there would not be a real chance of harm to the applicant in Kabul on the basis of his Hazara ethnicity[17].

   [14] At [21]

   [15] At [24], [26]

   [16] At [26]

   [17] At [28]

6. The Authority noted that the applicant may have departed Afghanistan on a fraudulent passport but that country information indicated that those who departed Afghanistan illegally were rarely punished unless they had committed other crimes[18].  The Authority found that as there was nothing on the material before it to suggest that the applicant had committed other crimes, the applicant would not be punished for his illegal departure from Afghanistan[19].

   [18] At [29]

   [19] At [29]

7. In the absence of any country information to the contrary, the Authority did not accept that the applicant would face relevant harm on the basis of his status as a failed asylum seeker or returnee from the West[20].

   [20] At [31]

8. The Authority was not satisfied that the applicant met the requirements in s.36(2)(a) of the Migration Act[21].  On the basis of its anterior findings of fact, the Authority was not satisfied that the applicant had a real risk of suffering significant harm in Afghanistan and therefore found that he did not satisfy s.36(2)(aa) of the Migration Act[22].

   [21] At [33]

   [22] At [39]

The present proceedings

1. These proceedings began with a show cause application filed on 10 August 2016.  The applicant now relies upon an amended application filed on 2 February 2017.  The sole ground in that application is: 

   The IAA’s conclusions concerning country information were irrational and not reasonably formed on the basis of the evidence.

2. The application is supported by a short affidavit filed with the original application, which I received as a submission. 

3. I received as evidence the court book filed on 29 November 2016 and the affidavit of Mia Donald made earlier today which annexes the applicant’s irregular maritime arrival entry interview. 

4. I invited oral submissions from the applicant today in support of his application.  A number of things are apparent from those submissions.  The first is that the applicant’s abiding fear relates to the animosity of Ghulam Rasool.  The Authority accepted the essential facts relating to the enmity between the applicant and his family and Ghulam Rasool.  The Authority also accepted country information concerning the tradition of blood feuds in Afghanistan.

5. The Authority reasoned, however, at [18] and [19][23], that the applicant’s ability to travel freely between Kabul and his hometown, and his delay in moving his family from his hometown to Kabul, meant that the applicant’s fears were not well founded. 

   [23] CB 149

6. The applicant regards that reasoning as not only wrong but irrational.  I disagree.  In my view, the disagreement is with the merits of the Authority’s reasoning.  The Authority, in my opinion, following a logical basis of reasoning from established facts.  The conclusions reached by the Authority were open to it on the material before it. 

7. The second thing emerging from the applicant’s submissions is that he does not accept that he can find safety in Kabul.  He appears to be less concerned about the general security situation in Kabul that with the perceived influence and reach of Ghulam Rasool.  Again, the applicant contests the merits of the Authority’s reasoning.

8. The applicant told me that while he still has land in his home location inherited from his father, it was, in effect, abandoned. Ghulam Rasool and his associates killed his father, destroyed the farm, and forced the relocation of the applicant’s family to Kabul. The applicant is sincere, in my opinion, in his fears about returning to Kabul. He told me that while his wife and children remain there, on his advice they move every few months. These are matters which the Minister could consider pursuant to s.417 of the Migration Act if he were so minded. They are, however, beyond the scope of this proceeding.

9. I have considered whether in this case any issue arises from the decision of the High Court in Minister for Immigration v SZSCA[24], in particular at [29]:

   The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul.  The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm.  This was an incorrect approach.  Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it.  An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.

   [24] (2014) 254 CLR 317

10. In the present case, I accept the oral submission of the Minister’s solicitor that this case can be distinguished on its facts. 

11. The applicant in this case does not have any occupation that would take him outside of Kabul.  As the Authority found at [12] of its reasons[25], he no longer has any residential, close family or other ties to his former hometown.  The issue here is somewhat different from SZSCA.  That issue is that the applicant’s return to Kabul would be a recognition of the success of his enemies.  They have killed his father, destroyed his farm and driven him from his hometown to Kabul with the rest of his family.  It is for the Minister to consider whether it is reasonable to expect the applicant to accept that outcome. 

    [25] CB 147

12. I otherwise agree with the submissions of the Minister. 

13. The ground does not identify the conclusions that are said to be irrational or unreasonable.  The Authority’s decision identifies the reasons for its findings, which included consideration of relevant country information.  The Authority’s findings were open to it and it cannot be said that there is a lack of a logical connection between those findings and the evidence[26].

    [26] Minister for Immigration v SZMDS (2010) 266 ALR 367 at [51]

14. Further, it is well established that the choice and assessment of country information is a factual matter for the Authority[27].  The applicant’s description of the Authority’s reasoning as “irrational” and “not reasonably formed” appears in essence to be the expression of an emphatic disagreement with it[28].  The ground reveals no jurisdictional error in the Authority’s decision.

    [27] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13])

    [28] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40]

15. I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5,100.  That is significantly below the amount prescribed in the Federal Circuit Court Rules 2001 (Cth). The applicant expressed his disagreement with my decision but did not oppose a costs order.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,100.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       20 November 2017