CDZ16 v Minister for Immigration
[2017] FCCA 356
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 356 |
| Catchwords: MIGRATION – Protection (Class XA) visa – whether the Authority failed to take into account relevant considerations –the Authority did not misapply or misconstrue s.473 CD and s.473DD – the Authority made adverse findings open to the Authority – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473CC, 473DC, 473DD, 473GB, 476 |
| Cases cited: MZAFZ v Minister for Immigration [2016] FCA 1801 |
| Applicant: | CDZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2107 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 28 February 2017 |
| Date of Last Submission: | 28 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Tully |
| Solicitor for the Applicant: | Ryburn Solicitors |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2107 of 2016
| CDZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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”) made on 6 July 2016 affirming the decision of the delegate not to grant the applicant a protection visa.
The Delegate
The applicant was found to be a citizen of Afghanistan. The applicant alleged that he lived and worked illegally in Iran between 1993 and 2011. During that time the applicant returned twice to his home in Afghanistan and he intermittently travelled to a place in Pakistan to visit his family.
The applicant alleged he departed Pakistan on a bogus passport in August 2012 and transited through Sri Lanka, Thailand and Malaysia into Indonesia in September 2012. The applicant arrived on Christmas Island as an Illegal Maritime Arrival in approximately November 2012. On 24 July 2015 the applicant lodged a valid application for a temporary protection visa. On 17 May 2016 the delegate refused a grant of the protection visa.
The Authority
The applicant was found to be a Shia Muslim of Hazara ethnicity. The applicant had provided a statement alleging particular incidents that occurred to him in Afghanistan, including specifically in 2008 when the applicant was working in Iran and returned to Afghanistan.
The applicant claimed to fear harm from the Taliban and the Pashtun people who support the Taliban and other related groups. The applicant claimed to fear persecution because of his ethnicity and his religion.
Information before the Authority
The Authority identified that it had had regard to the information referred to it by the Secretary under s.473CB of the Act. The Authority referred to the representative’s submissions, dated 16 June 2016, together with various articles. In respect of some of that information, the Authority identified that it did not consider the material to be new information as defined in s.473DC(1) of the Act and that the Authority had had regard to that information.
The Authority then referred to certain other information that predated the delegate’s decision. The Authority was not satisfied that that material could not have been provided to the delegate, before the delegate made the decision or that they are credible personal information. The Authority was not satisfied that s.473DD of the Act was met.
The Authority referred to two post-dated articles to the delegate’s decision. The first referred to a young man who was skinned alive in a particular province because he was said to have been the distant relative of a man suspected of killing a former Taliban commander. The second article reported on Taliban suicide bombers who raided a courthouse in a particular city. The Authority accepted that the articles are examples of violence in Afghanistan. However, the Authority was of the view that neither article was relevant to the applicant’s particular claims.
Assessment of the applicant’s claims and evidence
The Authority set out the applicant’s claims and made reference to country information. The Authority referred to the incident alleged in 2008 and the applicant’s assertion that whilst travelling in a car, the car was stopped, the passengers were questioned and the elderly were let go. The Authority refers to the applicant stating that he was not asked his name, but he told the men of his village that he was returning there to fix the roof of his house. The Authority made reference to the applicant’s assertion that he and the other men were accused of working for a foreign organisation and although the applicant denied the accusation and said that he had been living in Pakistan for the last 15 years, the applicant was hit and lost consciousness. The applicant alleged that he woke up later in a house with his hands tied behind his back. The applicant alleged that he and the other men escaped by untying each other’s hands and climbing out a window onto a roof when it became dark and the evening prayers were started.
The Authority found the applicant’s account of the incident was plausible, on account of the applicant was assaulted, kidnapped and questioned by the Taliban in 2008 and escaped the same day. The Authority found that given that the applicant was not asked his name, that this was an opportunistic attack and was not because the applicant was known to the Taliban. The Authority turned to the issue of discrimination faced by the applicant in a particular area.
Refugee criterion assessment
The Authority identified the requirements for refugee assessment in relation to statutory provisions, referring to s.5H and s.5J of the Act. The Authority referred to the applicant’s claims and evidence. The Authority referred to having accepted the applicant was assaulted, kidnapped and questioned by the Taliban in an opportunistic attack while the applicant was travelling through his village in a particular province in 2008.
The Authority made reference to the fact that on the basis of the information set out, the Authority was of the view that were the applicant to return to his village in a particular district in the foreseeable future, the applicant would be at risk of being targeted by the Taliban, on account of being a Shia Hazara. The Authority also made reference to the means by which the applicant would have to return to this area, which would require travelling a particular road, which the DFAT information recognised as dangerous for Hazara. It was in these circumstances that the Authority was satisfied that the applicant faces a real chance of persecution in the reasonable foreseeable future if returned to Afghanistan on account of his Hazara ethnicity and Shia Muslim religion.
In regard to s.5J(1)(C) of the Act, the Authority considered whether the applicant had a real chance of persecution only in a particular part of the receiving country, and noted that the fear of persecution must relate to all areas of the relevant receiving country. The Authority was not satisfied that there is a real chance the applicant would face serious harm in Kabul, in Afghanistan. The Authority referred to the fact that returnees from Western countries are almost exclusively returned to Kabul.
The Authority referred to DFAT country information, and assessed Hazara Shia returnees, who are not directly associated with the government or international community currently do not face a higher of level of risk upon return than do returnees to Afghanistan from other ethnic groups. The Authority referred to the heightened risk for those who have to travel on roads between Kabul than another place. The Authority referred to the DFAT’s assessment, that it is definitely safe for Hazara Shias to return to Hazara majority areas in Kabul.
The Authority found the applicant does not have the type of profile identified by DFAT that would place him at risk of harm in Kabul. The Authority made reference to country information discussed by the Authority indicating that people with profiles like those associated with the government or the international community are at a significantly higher risk of being targeted in Kabul and that no particular group is systematically targeted solely on the basis of ethnicity. The Authority made reference to the primary targets for insurgent attacks being government institutions, political figures, ANDSF personnel, other security services and international organisations.
The Authority found the applicant does not have a profile that would cause him to be targeted. While the authority accepted the DFAT assessment that violent attacks in Kabul are common, given the applicant’s profile, the Authority was not satisfied there is a real chance that the applicant would be targeted by the Taliban, Daesh, or other extremist groups in Kabul because the applicant is a Shia Hazara.
The Authority made reference to the fact that on the basis of country information identified, the Authority was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future by his return to Kabul, Afghanistan, where he would be returned from Australia on account of his Hazara ethnicity or by reason of his Shia Muslim religion.
The Authority found that the applicant did not meet the requirements for the definition of refugee under s.5H of the Act and that the applicant did not meet the criterion under s.36(2)(a) of the Act.
Complementary protection criterion assessment
The Authority turned to the issue of complementary protection. The Authority made reference to the fact that the applicant does not face a real chance of suffering harm in Kabul because of his Hazara ethnicity or Shia Muslim religion.
The Authority was not satisfied that there was a real chance or a real risk of significant harm in Kabul for reasons for the applicant’s Hazara ethnicity or Shia Muslim religion. The Authority found the applicant does not claim to fear harm for any other reason in Kabul and does not have a profile which the DFAT country information assess may put him at risk. It was in these circumstances that the Authority was therefore satisfied that the applicant does not face a real risk of significant harm for any other reason in Kabul.
The Authority considered whether it was reasonable for the applicant to relocate to Kabul where he would not face a real risk of significant harm. The Authority made reference to taking in to account available country information and the applicant’s personal circumstances. The Authority was satisfied in the circumstances that it was reasonable for the applicant to relocate to Kabul, an area of the country where there is no real risk that the applicant would suffer significant harm and a place to which the applicant would be returned from Australia.
The Authority was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kabul in Afghanistan, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate
Before this Court
The grounds of the application are as follows:-
1. The IAA misapplied or misconstrued s 5J(1)(c) of the Migration Act 1958 (Cth) (the Act).
Particulars
(i) At [36]-[49] of its decision, the IAA was not satisfied that the real chance of persecution related to all areas of Afghanistan.
(ii) The IAA failed to consider whether Kabul was a safe area that could be accessed safely and legally by the applicant as is intended to be required by s 5J(1)(c) of the Act.
2. The IAA failed to consider a claim made by the applicant in its complementary protection assessment.
Particulars
(i) The applicant claimed to be afraid that something might happen to him in Kabul but was told that it would be easy for him to go there if he wore a turban.
(ii) At [51]-[64] of its decision, the IAA failed to consider this claim when concluding that it would be reasonable for him to relocate to Kabul where there would not be a real risk that he would suffer significant harm.
3. The IAA failed to consider whether the applicant had a well-founded fear of persecution in Kabul by reason of an imputed political opinion.
Particulars
(i) At [7], [10]-[11] and [35] of its decision, the IAA accepted the applicant's account to have been assaulted, kidnapped and questioned by the Taliban in an “opportunistic attack” while travelling in Ghazni province during 2008 after being “accused of working for foreign organisations and/or with foreigners".
(ii) At [42], [48] and [56] of its decision, the IAA limited its consideration to whether the applicant had “the type of profile" identified by the Department of Foreign Affairs and Trade, being that returnees “who are not directly associated with ... the international community" did not face a higher risk of harm upon return than did other returnees.
4. The IAA misapplied or misconstrued s 473DC of the Act.
Particulars
(i) At [6] of its decision, the IAA concluded that 2 articles submitted by the applicant were not relevant to his claims.
(ii) The test of relevance under s 473DC(1)(b) only applied when the IAA exercised its discretion to “get" any new information, whereas, in relation to any new information “given”, or proposed to be “given”, to the IAA by a referred applicant, the IAA had to apply s 473DD.
5. The IAA failed to consider whether to exercise its discretion under s 473GB(3) of the Act.
Particulars
(i) On 17 May 2016, a delegate of the Minister for Immigration and Border Protection issued a certificate under s 473GB of the Act.
(ii) On 17 May 2016, the IAA was given a document or information and was notified that s473GB applied in relation to that document or information.
(iii) There is no evidence that the IAA had regard to any matter contained in the document or information, or disclosed it to the applicant.
Consideration
Ground 1
In relation to Ground 1, Mr Tully of counsel on behalf of the applicant contended that on the proper construction of s.5J(1)(c) of the Act, the Authority was required to consider whether the applicant could safely and legally access Kabul. Mr Tully of counsel referred to the explanatory material in relation to that statutory provision and contended that on its proper construction, s.5J of the Act required an express deliberation by the Authority of whether the applicant could access an area safely and legally.
Mr Tully of counsel took the Court to the Authority’s decision that returnees from Western countries are almost exclusively returned to Kabul. On a fair reading of the Authority as a whole, it is apparent that the Authority found that the applicant would be returned to Kabul.
The requirements of s.5J(1)(c) of the Act required the Authority to consider whether the applicant had a well-founded fear of persecution relating to all areas of the receiving country. There is no basis for reading into s.5J(1)(c) of the Act, a statutory requirement for the Authority to determine whether a particular place is a safe area that could be accessed safely and legally. Accordingly, no jurisdictional error as alleged in Ground 1 is made out.
Even if on its proper construction, s.5J of the Act required deliberation as to whether the applicant could safely and legally access Kabul, this is a case where on a fair reading of the Authority’s reasons, the Authority found that the applicant would be returned to Kabul. It is implicit in the Authority’s reasons that the applicant could safely and legally enter Kabul. No jurisdictional error of the kind alleged in Ground 1 is made out.
Ground 2
In relation to Ground 2, Mr Tully of counsel contended that in relation to complementary protection, the Authority failed to properly consider the applicant’s fear of harm in Kabul. The Authority referred to what the applicant had said in response to the suggestion that the applicant would be safe in Kabul. The applicant had said he had gone to Kabul for two days and the applicant asserted that he was afraid that something might happen to him. The applicant asserted that he was told that if he wore a turban it would be easier for him to go there.
The Authority was not required to make findings of fact in respect of the whole of the evidence that was articulated. It was apparent that the Authority addressed the essential integers of the applicant’s claims to fear harm. The finding in relation to complementary protection expressly refers to the circumstances of the applicant which include the applicant’s claims in relation to what he was told about wearing a turban in Kabul. There was no failure to consider a claim advanced by the applicant as alleged in Ground 2. Ground 2 failed to make out any jurisdictional error.
Ground 3
In relation to Ground 3, Mr Tully of counsel submitted that there had been a failure by the Authority to consider whether the applicant had a well-founded fear of persecution in Kabul by reason of an imputed political opinion. Mr Tully made reference to the incident that occurred in 2008 to the applicant in circumstances where he had been questioned by the Taliban and accused of working for a foreign organisation or with foreigners.
Mr Tully of counsel contended that the focus by the Authority on the type of profile of the applicant was not a finding in relation to the applicant’s fear of an imputed political opinion. No claim of imputed political opinion was expressly raised on the material before the Authority. No claim of imputed political opinion reasonably arose on the material before the Authority. The incident in relation to the opportunistic attack and the applicant being accused of working for a foreign organisation was subsumed within the applicant’s fear from the Taliban by reason of being a Shia Hazara. The Authority made adverse findings that were open to the Authority on that claim. Ground 3 fails to make out any jurisdictional error.
Ground 4
In relation to Ground 4, Mr Tully of counsel submitted that s.473DD of the Act on its proper construction did not include a consideration of relevance in determining whether to take into account alleged new information. Mr Tully of counsel submitted that the Authority had misconstrued s.473DD of the Act in determining whether to consider new information and/or that the Authority had misconstrued or misapplied s.473DC(1)(b) of the Act in its deliberations under s.473DD of the Act.
Sections 473DC and 473DD of the Act are as follows:-
s.473DC
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
s.473DD
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Mr Knowles of counsel on behalf of the respondent contended that the two provisions were complementary and that it was open to the Authority in relation to the material provided by the applicant to consider whether that material was relevant under s.473DC(1)(b) of the Act. Mr Knowles of counsel also submitted that in any event, the question of whether the documents were relevant, was a consideration within the scope of the obligation imposed under s.473DD of the Act for the Authority to determine whether or not to consider any new information.
On a fair reading of the Authority’s decision, the Authority identified the material provided to the Authority under s.473DC of the Act and then turned to the submissions to determine whether that was new information. In respect of the submissions, the Authority was proscribed from considering the same unless the requirements under s.473DD of the Act were met. In that regard, the requirements of paragraphs (a) and paragraph (b) of s.473DD of the Act are cumulative whereas the considerations under s.473DD(b) of the Act are in the alternative.
The Authority found in the present case that the two articles were not relevant to the applicant’s particular claims. That was a finding that was open to the Authority to make on the material before the Authority. In circumstances where the Authority has identified that the proposed new information is not relevant, in my opinion, that is an obvious reason why the information does not meet the criteria under s.473DD(a) of the Act.
The Authority’s reasons are not to be read with a keen eye for error. On a fair reading of the Authority’s reasons, the Authority found that it was not satisfied there are exceptional circumstances to justify considering the two new articles that postdate the delegate’s decision as they were not relevant.
I do not accept the submission by Mr Tully of counsel that relevance is an irrelevant consideration in respect of the Authority’s consideration as to whether it is satisfied that there are exceptional circumstances to justify considering the new information. Further, I accept the submissions of the first respondent that this is a case where in relation to s.473DD and s.473DC of the Act, the information was found by the Authority to be irrelevant. Accordingly, no jurisdictional error as alleged in Ground 4 is made out.
Further, I am satisfied this is a case where if there was error, it could not possibly have made an impact on the outcome by the Authority. In this regard, I note that Mr Tully of counsel contended in particular that the first article could apply to the applicant. That article referred to a young man who wished to see himself in that light. It was open to the Authority to find that the article is irrelevant. The first respondent has satisfied the Court if there was any error, such error could not have made a difference in the outcome of the review. For that reason, any relief would be refused on discretionary grounds even if an error had been made out.
Ground 5
In relation to Ground 5, there was a certificate provided to the Authority and reference was made to the decision in MZAFZ v Minister for Immigration [2016] FCA 1801 in which the certificate had a generalised description. In the present case, there was identified under s.473GB of the Act, a particular document relevantly entitled an Identity Assessment Form contained in a PDF or folio. The certificate referred to the reason that the information should not be disclosed to the applicant or the applicant’s representatives as the disclosure of any matter contained in the document or the disclosure of the information would be contrary to the public interest because it is a Departmental working document.
It is common ground that the certificate was not provided to the applicant. Mr Tully of counsel contends by reason of the reference to the Authority in the authoritative reasons having regard to the material referred by the Secretary under s.473CB of the Act, the Authority must have had regard to the relevant certificate. In those circumstances, it was submitted that the Authority failed to consider the discretion imposed upon the Authority under s.473GB(3) of the Act.
Section 473GB of the Act is as follows:-
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:
(a) must notify the Authority in writing that this section applies in relation to the document or information; and
(b) may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
(a) may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
(b) may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
(4) If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.
(5) The Minister may issue a written certificate for the purposes of subsection (1).
Mr Tully of counsel submitted that this was not a case where there was any allegation of a denial of procedural fairness. Rather, the certificate was a document provided to the Authority and that the Authority failed to comply with its statutory obligation arising under s.473GB(3) of the Act. Mr Tully of counsel submitted that because of the reference to the Authority having regard to all the material referred by the Secretary, the Authority must have taken into account the document and that there is no identification in the Authority’s reasons of having turned its mind to and given consideration to what Mr Tully contended were the jurisdictional requirements of s.473GB(3) of the Act.
Mr Tully of counsel did not advance a submission that there was any breach of s.473CC of the Act by the Authority in the present case. Further, in my opinion, no breach of s.473CC of the Act arises in the circumstances where the Authority has been provided with a certificate under s.473GB of the Act regardless of whether the certificate is valid or invalid.
Insofar as Mr Tully of counsel’s submission is advanced in relation to s.473GB(3) of the Act, the discretionary power given to the Authority is not one which is the subject of a mandatory obligation of a kind that could give rise to jurisdictional error.
On the face of the material before the Court, no part of the Authority’s reasoning refers to an issue concerning the applicant’s identity. There was no jurisdictional error by reason of the Authority not expressly referring to s.473GB(3) of the Act. Further, I am satisfied in the circumstances of the present case that the relevant document was one concerning the identity of the applicant, and the applicant’s identity is not the subject of any issue in these proceedings. I am satisfied that the relevant document could not possibly have affected the outcome of the review. I find that no jurisdictional error of the kind alleged in Ground 5 is made out. I find that even if there was an error under s.473GB of the Act, relief should be refused on discretionary grounds.
Conclusion
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
Date: 8 March 2017
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