CCR18 v Minister for Home Affairs

[2019] FCCA 1215

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCR18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1215

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Temporary Protection visa – whether the Authority complied with its statutory obligations – whether the adverse findings by the Authority were illogical or irrational – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 473DD, 476

Applicant: CCR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 220 of 2018

Judgment of: Judge Street

Hearing date: 19 March 2019

Date of Last Submission: 19 March 2019

Delivered at: Adelaide

Delivered on: 19 March 2019

REPRESENTATION

Counsel for the Applicant: Mr M Crowley

Solicitors for the Applicant: AUM Legal

Solicitors for the Respondents: Mr T Lettenmaier
Sparke Helmore

ORDERS

1. The proceedings proceed by way of audio link pursuant to Part 6 division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS ($5000).

DATE OF ORDER: 19 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

PEG 220 of 2018

CCR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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 22 March 2018, affirming a decision of the delegate not to grant the applicant a Temporary Protection 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 as an unauthorised maritime arrival on 19 December 2012. The applicant was found to be Hazara Shia from a particular village in the Jaghori District, Ghazni Province of Afghanistan.

3. The applicant claimed to fear harm by reason of a dispute with his neighbours in respect of water, by reason of an alleged blood feud dispute and because of his Hazara ethnicity, and by reason of his Shia Muslim religion and his return from a western country.

4. On 24 May 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.

5. On 30 May 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions, which were dated 28 December 2017.

6. In those submissions there was an express reference to an alleged blood feud between the applicant and a person called AK, which was alleged to be of a personal nature. The delegate, in part 6 of the delegate’s reasons, had referred to country information from 2011 in relation to blood feuds being long‑lasting and revenge can take many months. The applicant’s submissions dated 28 December 2017 referred to there being country information on blood feuds and saying that the delegate correctly acknowledged that blood feuds are long lasting and can take even generations after an offence and asserted that the applicant’s risk of harm was not remote. There was then a reference to a 2014 and 2016 country information report addressing the proposition as to blood feuds being of a potentially long‑lasting kind that may give rise to retaliation, violence and revenge.

7. The Authority in its reasons identified the background for the visa application and had regard to the information referred by the Secretary under s.473CB of the Act.

8. The Authority identified that the 2014 country information report was not before the delegate in relation to the requirements of s.473DD(b)(i) of the Act. The Authority went on to refer to not being satisfied that the documents could not have been provided to the Minister before the delegate made the decision. Reference was made to the applicant being unrepresented. The Authority referred to the report and general country information. The Authority was not satisfied that had the information been known it may have affected the consideration of the applicant’s claims by the delegate. That was clearly a reference to the requirements of s.473DD(b)(ii) of the Act.

9. Taking into account all the circumstances, the Authority was not satisfied there were exceptional circumstances to justify considering the new information. The Authority’s reasons, on its face reflect taking into account the whole of s.473DD of the Act and do not reflect that there was any erroneously narrow meaning of exceptional circumstances or a failure to have regard to the whole of the provision in determining whether the new information met the requirements of s.473DD of the Act.

10. The Authority provided logical and rational reasons in support of the adverse finding under s.473DD of the Act and by reason of those matters it cannot be said that the adverse finding lacks an evident and intelligible justification.

11. The Authority referred to taking into account updated country information from the Department of Foreign Affairs and Trade (“DFAT”) and was satisfied there were exceptional circumstances to justify considering the same.

12. The Authority summarised the applicant’s claims. The Authority was not satisfied the applicant had been a truthful witness in relation to the level of contact with his family and friends in Afghanistan and was satisfied the applicant was in regular contact with his three sisters and their families in Afghanistan and the applicant has been sending money to them since his arrival in Australia.

13. The Authority referred to the alleged dispute with the neighbouring Pashtun family. The Authority referred to the applicant’s claim that his family had many fights with the neighbouring Pashtun family over the course of two or three months in 1997.

14. The Authority referred to the applicant having identified in the protection visa interview that the dispute concerned a water dispute and that when they would come and take the water and cut trees, the applicant would go up into the mountains and throw rocks to scare them away.

15. The Authority accepted that the applicant’s family had a dispute over water with their neighbours, being a Pashtun family. The Authority also accepted that the applicant would try and stop the Pashtun family from taking water and cutting down trees by throwing rocks and that on a number of unspecified occasions the dispute between the families became physical. The Authority in that regard took into account country information in relation to disputes of that kind being common in Afghanistan.

16. The Authority referred to the applicant claiming that his mother and father were killed by the Taliban in 1997. The Authority did not accept that the parents were killed in the circumstances claimed by the applicant. The Authority found in that regard the applicant’s evidence about the event in which his parents were killed was inconsistent and unconvincing.

17. The Authority referred to the applicant being asked why he had left Afghanistan and the applicant referring to there being a drought and that his Pashtun neighbours had taken the water. The applicant claimed that the Taliban came and attacked his house and killed his parents. The Authority noted there was no mention of the claim that the Pashtun neighbours were members of the Taliban and that it was the Pashtun neighbours who attacked the family home and killed his parents.

18. The Authority referred to the protection visa statement provided by the applicant, in which the applicant stated that the Pashtun neighbours eldest son, AK, although giving a different name in the protection visa interview, “MK”, alleged that AK, with seven or eight members of his family, attacked the applicant’s home. The Authority noted that in the protection visa interview the applicant had stated that it was MK and 15 people that attacked the home. The Authority considered the applicant’s evidence regarding the attack on his family home to be vague and unconvincing. The Authority found that the applicant was unable to provide more than a general and innocuous description of the event.

19. The Authority also found the applicant’s evidence regarding the timeframe evolved over time. The Authority found that the applicant’s explanations for the inconsistencies were not satisfactory.

20. The Authority found it was not satisfied the applicant had been a truthful witness regarding these aspects of his claims. The Authority did not accept the neighbouring Pashtun family were members of the Taliban. In paragraph 36, there is an obvious typographical error in the third sentence where the “not” has been omitted by error. The existence of the error is obvious when the decision is read as a whole, but in particular with paragraph 36 where the Authority did not accept that when the Taliban came to town, the eldest son of the neighbouring Pashtun family became a Taliban leader. The Authority did not accept that arising from the dispute over water the applicant’s family home was attacked by any members of the Taliban or the neighbouring Pashtun family. The Authority did not accept the applicant escaped the attack by running away. The Authority did not accept the applicant’s family home was attacked. The Authority did not accept the attack on the family home was on the basis of the applicant’s decision to depart Afghanistan or was the basis for the decision to depart Afghanistan.

21. The Authority did not accept the Taliban had the applicant’s photograph or that since his departure from Afghanistan the Taliban had sought his whereabouts. The Authority in that regard expressly referred to having found the applicant’s claims regarding his family home being attacked by the Taliban had no credible basis.

22. The Authority referred to the applicant’s claim that he fears harm from the former Pashtun neighbours, including the eldest son, who was alleged to be a leader of the Taliban. The Authority expressly referred to having accepted that there was a dispute over water, but having not accepted the applicant’s claims that the neighbouring Pashtun family were members of the Taliban or that the eldest son was a leader in the Taliban as being credible.

23. The context of paragraph 39 makes clear that the omitted word “not” in paragraph 36 was an obvious typographical error. That typographical error is not of a kind that gives rise to any jurisdictional error.

24. The Authority referred to the applicant’s uncle living on the family land for a period of two years or longer, but did not accept the applicant’s uncle made a deal with the neighbouring Pashtun family or that the Taliban ordered him to do so.

25. The Authority referred to the contention advanced that the family had been the subject of a blood feud and that such disputes last for a very long time. The Authority expressly referred to having considered the submissions and information before the delegate regarding blood feuds, but did not accept that there was any plausible basis for the assertion that the dispute is a blood feud. The Authority referred to the information indicating that blood feuds are, by their very nature, likely to occur within the same ethnic group and are not personalised, and that extended families living in the same area, including adult males are potentially at risk. The Authority referred to the evidence before the Authority to the effect that the dispute was between two different ethnic groups and none of the applicant’s family members who had remained living in the district of Jaghori, including adult males, have experienced any problems. It was in those circumstances the Authority made an express finding that it did not accept there was a blood feud.

26. The Authority referred to there being evidence that the last contact between the applicant’s family and the neighbouring Pashtun family in relation to the dispute was over 19 years ago. The Authority found the applicant’s claims that the Taliban where seeking his whereabouts were not credible, and that the applicant has not claimed and there was no evidence before the Authority to suggest that the neighbouring Pashtun family had sought his whereabouts. The Authority was satisfied, having regard to all the evidence, that after the applicant’s father’s death, the neighbouring Pashtun family has not had any continuing enmity towards the applicant or his family. The Authority was not satisfied there remains any ongoing personal dispute between the applicant and the neighbouring Pashtun family. The Authority was satisfied there was no reasonable basis to suggest that there is a real chance that the applicant’s past dispute with the neighbouring Pashtun family would reanimate on the applicant’s return to his home village.

27. The Authority was not satisfied that the issue of the applicant’s brother having been killed in 2011 in Pakistan would give rise to a real chance of harm to the applicant on return.

28. The Authority was not satisfied there was a real chance the applicant would face harm from the Taliban or other Anti-Government Elements (“AGEs”), such as Islamic State, or its supporters, in his home district for reasons of his ethnicity or his religion, his actual or imputed opposition to insurgent groups, or as a Hazara Shia.

29. The Authority was not satisfied that any nepotism or restrictions in accessing senior government employment would threaten the applicant’s capacity to subsist or would otherwise constitute serious harm. The Authority found that it was satisfied the chance or risk of discrimination on the basis of the applicant’s ethnicity and/or religion is remote.

30. The Authority was not satisfied the applicant would face a real chance of harm in his home district for reasons of having lived in, or sought asylum in, a western country like Australia, or by reason of western mannerisms, including his dress or accent, unfamiliarity with Afghanistan or any actual or imputed pro‑western political opinion or on the basis that he will be considered a foreigner and/or spy on his return.

31. The Authority found that there is not a real chance of the applicant being harmed on return to his home village. The Authority was not satisfied on the evidence before the Authority that the applicant would not be able to afford the cost of a single adult fare to travel to an airport near his home. The Authority was satisfied the applicant would not face a real chance of harm en route by air to his home village from Kabul or by road, and was satisfied that the applicant would be able to safely access the district of Jaghori.

32. The Authority was not satisfied the applicant would face any chance of harm from the Taliban, Islamic State or any other AGEs, or any other group or person on return to Afghanistan, on any of the bases claimed.

33. The Authority found the applicant does not have a well-founded fear of persecution. The Authority found the applicant does not meet the definition of a refugee in section 5H(1) of the Act. The Authority found that he did not meet the criteria in s.36(2)(a) of the Act.

34. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk the applicant would suffer significant harm.

35. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act and affirmed the decision under review.

The grounds

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

   1. The decision of the Immigration Assessment Authority (IAA) was vitiated by an unreasonable failure to receive or otherwise to ‘get’ the 'new information’ consisting of the United Nations High Commissioner For Refugees, Division of International Protection Country of Original Research and Information Thematic Report: Afghanistan – Blood Feuds (UN Blood Feuds Report), or which exposed a misconstruction or misapplication of ss.473DC and 473DD of the Migration Act 1958 (Cth).

   Particulars

   1.1 The Applicant provided the IAA with the ’new information’ consisting of the UN Blood Feuds Report

   1.2 The UN Blood Feuds Report contained specific information that:

   1.2.1 ‘[B]lood feuds are more likely to occur between different tribes’ and, where so, are more likely to become violent;

   1.2.2 And such disputes are most commonly triggered by land disputes;

   1.2.3 And such disputes are commonly triggered by water disputes.

   1.3 The IAA declined to receive the UN Blood Feud Report while relying on information before the delegate for a finding that ‘blood feuds by their very nature were more likely to occur within the same ethnic group’ and that the Applicant’s claim to have had a blood feud with a Pashtun rival family, where the Applicant’s family are Hazara, was ‘contrary to the evidence before me’ and therefore rejecting the claim of a ‘blood feud’.

   2. The decision of the IAA was vitiated by a process of reasoning which was irrational or illogicality, or was arbitrary or capricious, in relation to its findings on a critically important aspect of the Applicant’s claims.

   Particulars

   2.1 The IAA found at [36]: “I do accept when the Taliban came to power the eldest son of the neighbouring Pashtun family became a Taliban leader.”

   2.2. But at [39] it was found that: “I have accepted the applicant and his family were involved in a dispute over water with the neighbouring Pashtun family however I have not accepted the applicant’s claims that the neighbouring Pashtun family were members of the Taliban or that the eldest son was a leader as credible.”

   2.3 The Taliban membership of the neighbouring family was a central integer of the Applicant’s claims for protection."

Ground 1

1. In relation to ground 1, Mr Crowley of counsel on behalf of the applicant submitted that the Authority had engaged in jurisdictional error by failing to exercise the power in s.473DC and s 473DD of the Act to obtain the 2014 country information report. It is apparent from the Authority’s reasons that the Authority referred to the submissions and had a real and meaningful engagement with the submissions.

2. Mr Crowley submitted that the reasoning of the Authority in its substantive reasons concerning the blood feud was inconsistent with the country information that the applicant contended was in the 2014 report. The 2014 report was not capable of establishing any such inconsistency as it was not material before the Authority and was not capable of giving rise to any jurisdictional error. For the reasons the Court has already given, there was no error by the Authority in the application of s.473DD of the Act.

3. It is apparent on the face of the Authority’s reasons that the Authority took into account the whole provision. There was no proper basis for finding that the Authority failed to reasonably exercise its power under s.473DC of the Act as there was no request in the submissions to do so and no new issue of the kind that required the Authority to do so.

4. Mr Crowley sought to advance an argument that was not the argument identified in the submissions that were made to the Authority. Mr Crowley sought to use the report as a basis for saying it was inconsistent with the reasoning of the Authority in relation to blood feuds. That was not the substance of the submission that was advanced. The submission that was advanced addressed the issue of blood feuds being longstanding. The Authority’s reasons in paragraph 41 make it clear that the Authority had regard to and took into account the submissions that were advanced. So far as the new information however was concerned the Authority provided a logical and rational reason in support of finding that it did not meet the requirements of s.473DD of the Act.

1. Given the scheme of Part 7AA of the Act and the opportunity that was given to the applicant to put on new information and submissions and that, subject to the provisions in Part 7AA of the Act, the Authority is to review the delegate’s decision on the basis of the material referred by the Secretary under s.473CB of the Act, in circumstances where the Authority has found that the new information advanced by the applicant does not meet the requirements of s 473DD of the Act, it cannot be said that there is a lack of an evident and intelligible basis as to why the Authority was not required to expressly consider the exercise of the power under s.473DC of the Act. There was no request in the submissions to the Authority to do so.

2. In circumstances where the applicant had had the opportunity to put on new information and the Authority had considered that new information did not meet the requirements of s.473DD of the Act, no jurisdictional error arises by reason of the absence of express consideration as to whether the Authority should exercise its powers under s.473DC of the Act. It is a matter for the Authority what country information it accepts.

3. There was no substance in the contention that there was no basis for the Authority to make the findings made by the Authority in holding that there was not a blood feud. Mr Crowley’s submissions in substance engage the Court in merits review. This Court has no power to review the merits.

4. Given the adverse finding in relation to blood feuds, this is a further reason why it could not be said that there was any legal unreasonableness by reason of the absence of an express consideration as to exercise the power under s.473DC of the Act. Accordingly, no jurisdictional error is made out as alleged in ground 1.

Ground 2

1. In relation to ground 2, Mr Crowley submitted that there were inconsistent findings by reason of the content in paragraphs 36 and paragraph 39. For the reasons already given, the inconsistency was founded on the proposition that there was no typographical error. It is apparent, as summarised above, that on a fair reading of the Authority’s reasons as a whole it was clearly a typographical error.

2. Mr Crowley sought to contend that the Authority’s reasons were not capable of being the subject of a typographical error, given the requirement to reduce its reasons to writing. There is no substance in that contention. No jurisdictional error as alleged in ground 2 is made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  22 May 2019