CDC15 v Minister for Immigration

[2016] FCCA 1314

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1314

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to constructively exercise its jurisdiction – whether the Tribunal failed to address an integer of the applicant’s claim – whether the Tribunal failed to make an obvious and critical enquiry – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 420, 476

Applicant: CDC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 392 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Ms Wells

Solicitors for the Applicant: Cabrini Shepherd Pro Bono Solicitors

Solicitors for the First Respondent: Mr d'Assumpcao
Australian Government Solicitors

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,243.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 392 of 2015

CDC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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) in respect of a decision of the Tribunal made on 13 September 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Hazara and identified in his reasons to leave his alleged fear of the Taliban, which reasons were expanded upon in his statutory declaration identifying alleged particular events. 

3. In that statutory declaration, the applicant also made reference to the applicant’s concern as to why the authorities of Afghanistan cannot and will not protect the applicant if he goes back to that country and, in particular, made reference to not having police or security forces in his village. 

4. In summary, the applicant claimed to fear harm by reason of his race being Hazara, his religion, being Shi’a Muslim, his actual or imputed political opinion, being pro-Government or supportive of the Multinational Forces present in Afghanistan or conversely being against the Taliban, or his membership of two political social groups, suggested by his representatives, being western returnees or failed asylum seekers or spies or informants for the Afghan Government and International Security Forces.

5. In the course of the Tribunal’s reasons, the Tribunal referred to the applicant’s fears of being persecuted by reason of relevantly being against the Taliban and made reference to the submissions on behalf of the applicant being consistent with country information. It was in that context that the Tribunal referred to the representative submissions that recent sources continued to predict a grave future for a humanitarian situation in Afghanistan in the lead up to the withdrawal of international forces scheduled for 2014.

6. The Tribunal made adverse credit findings in relation to the applicant and, relevantly, found it did not accept that the applicant had a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future. 

7. The Tribunal also found that it did not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Afghanistan there is a real risk he will suffer significant harm, as defined in s.36(2A) of the Migration Act 1958. It was in those circumstances the Tribunal held that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 for a protection visa and affirmed the decision of the delegate.

8. The grounds of the amended application are as follows:

   1. The AAT constructively failed to exercise jurisdiction I failed to consider an integer of the applicant's claim in that it was an essential integer of the applicant's claim that he feared persecution in the reasonably foreseeable future, by reason of the withdrawal of international troops from Afghanistan. In making its decision, the AAT failed to address and make a finding as to whether the withdrawal of the international forces would have any bearing on the applicant's risk of persecution in the reasonably foreseeable future or whether there was a real risk of foreseeable harm as a result of being removed from Australia to Afghanistan.

   2. The unreasonableness of the AAT in making a finding about whether or not the applicant had a well-founded fear of persecution now or in the reasonably foreseeable future in failing to make an obvious and critical inquiry about the existence of country information relating to the withdrawal of international forces in the region (being specific country information referred to by the applicant in relation to which no enquiry was made by the AAT and specific country information that was already before the AAT) resulting in constructive failure to exercise its power.

9. In relation to the first ground, counsel, Ms Wells, for the applicant sought to contend that it was an essential integer of the applicant’s claim upon which the Tribunal had made findings of fact, that the applicant feared persecution in the reasonably foreseeable future by reason of the withdrawal of international troops from Afghanistan. 

10. Ms Wells suggested that that claim could be extracted from what was put forward in submissions by the applicant’s representatives after the hearing, at which the applicant appeared, to give evidence and present arguments on 1 April 2015.

11. Prior to the hearing on 1 April 2015, on 29 July 2014, the applicant’s representatives sent a 23 page submission to the Tribunal on 1 April 2014.

12. That submission identified the applicant’s alleged protection claims as follows:

    Protection claims: The Applicant had previously provided with his protection visa application a detailed statement of claims outlining the reasons he fled Afghanistan and his fears of persecution if returned to that country. He continues to rely on those claims. In addition, the Applicant would like to take this opportunity to provide the following information. The Applicant instructs that he is at a risk of harm upon return to Afghanistan as a failed asylum seeker.

13. The submissions then sought to address the delegate’s decision and whether or not the applicant’s fears were well-founded.  There is then a topic heading General Human Rights Situation in Afghanistan.  That section commenced by reference to the available information continuing to confirm that, despite progress of the planned withdrawal of foreign troops in Afghanistan, the Taliban remain as a formidable threat today as they have over the last decade of fighting in the country.

14. The submissions noted recent sources continue to predict a grave future for the humanitarian situation in Afghanistan in the lead up to the full withdrawal of international forces scheduled in 2014. 

15. The submission then identifies three different sources in relation to the worsening humanitarian situation.  The submission then referred to targeting of persons perceived to be supporting international organisations or the international community in Afghanistan. 

16. The submission then turned to risks faced by Hazaras within the applicant’s province.  In the context of a lengthy discussion of those risks, the following appears:

    In summary, we submit available information supports that the security situation in Afghanistan continues to deteriorate and that the Taliban continues to increase its power and control over Afghanistan. Analysts continue to predict a return to power of the Taliban in the foreseeable future following the upcoming full exit of international troops from Afghanistan scheduled from 2014. The increasing presence and operation of the Taliban throughout Afghanistan, including in Kabul, poses particular risks to ethnic minorities like the Hazaras who have historically remained targets of atrocious forms of persecution by this group. As noted in reports by a number of Afghan experts, Hazaras remain at a real risk of harm at the hands of the Taliban throughout parts of Afghanistan.

    In the Applicant's circumstances, we believe his return back to Dai Kundi Province as a Western Returnee who has been absent from his area for a long period would remain at a particularly heightened risk of targeted harm by the Taliban or anti-government elements operating within his area. The Applicant would be more identifiable as compared to other Hazaras who have been residing in the Dai Kundi Province through his accent, his lack of links in the area and lack of local knowledge arising from his absence from the area for a large period of his life.

    Additionally, the Applicant would face a real risk of serious harm while travelling along the roads in and out of Kabul that remain infiltrated by the Taliban and criminal elements. As a Hazara and a returnee from the West who has spent a large period of time outside of Afghanistan, the Applicant would remain at a heightened risk of being targeted by such groups while travelling in or out of relevant areas and/or would face a greater severity of harm should he be stopped by such groups. In the alternative, should the Applicant’s risk of harm while travelling in and out of the Dai Kundi Province be considered as not being convention related, it would still meet the complementary protection criterion which is addressed further below.

17. The submission then addressed state protection and then complementary protection issues and a conclusion. 

18. The Court was also taken to the applicant’s statutory declaration and the reference to not having police or security forces in the applicant’s village.  I do not accept the submission that the applicant advanced a claim that he feared persecution in the reasonably foreseeable future by reason of the withdrawal of international troops from Afghanistan. I do not accept that any such claim fairly arose on the material that was before the Tribunal.

19. The reference to the withdrawal of international troops was a fact advanced in relation to the applicant’s claim of fear, by reason of being a Hazara in Afghanistan.  The Tribunal did make findings in relation to the applicant’s fears. The adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  The proposition that the Tribunal failed to address an essential integer of the applicant’s claims is without substance. 

20. It was not necessary for the Tribunal to make a finding of fact as to the consequences of the withdrawal of troops from Afghanistan.  It is apparent that the Tribunal took into account the applicant’s submissions.  It is not necessary for the Tribunal to make findings of fact on every issue before it, nor does the Tribunal have to go through, line-by-line, rejecting or making findings on all the evidence. 

21. For the reasons I have given, the proposition that there was a claim that the applicant feared persecution, by reason of the withdrawal of international troops, was not an issue that the Tribunal had to make findings upon. Ground 1fails to make out any jurisdictional error. 

22. In relation to ground 2, counsel, Ms Wells, for the applicant referred to the unidentified information referred to by the Tribunal in para.37. That paragraph is as follows:

    37. As referred to above, in their submission dated 29 July 2014 forwarded to the Tribunal under cover of an email message dated 1 April 2015 Mr Jafari's representatives submitted that 'recent sources' continued to predict a grave future for the humanitarian situation in Afghanistan in the lead up to the withdrawal of the international forces scheduled for 2014 but the sources to which they referred dated from January 2012, September 2012 and January 2013 respectively. They submitted that Mr Jafari feared Taliban militants known to be operating in the province or neighbouring Pashtuns 'seeking to benefit from the lack of protection being afforded to Hazaras within this area'. They submitted that available information which they did not identify suggested that the security situation in Afghanistan continued to deteriorate and that the Taliban continued to increase its power and control in Afghanistan. However I prefer the more recent information referred to in the previous paragraph regarding the situation in Daikundi Province and specifically in the Shahristan district.

23. The substance of the submission advanced by Ms Wells was that, under s.420, the Tribunal had an obligation to make an obvious inquiry of the applicant’s representatives to identify the information. I reject that submission.

24. The reference to the available information was in the context of the Tribunal making findings of fact as to which country information it accepted.  It was open to the Tribunal to determine which country information it sought to rely upon.  There was no obligation upon the Tribunal to make some further inquiry of the applicant’s representatives in relation to the submissions that were advanced.

25. Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact that were open to the Tribunal.  The adverse findings cannot be said to lack an evident and intelligible justification.  The finding that the applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future is not affected by unreasonableness and there is no constructive failure by the Tribunal to exercise its jurisdiction. 

26. The amended application is dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 June 2016