CGV18 v Minister for Home Affairs
[2019] FCCA 2250
•4 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGV18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2250 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied s 36(2)(aa) and s 36(2B)(a) of the Act – whether the Authority failed to consider the applicant had a well-founded fear of persecution in the reasonably foreseeable future – whether jurisdictional error was made – no jurisdictional error made out – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 473CB |
| Cases cited: AHM18 v Minister for Home Affairs [2019] FCA 409 |
| Applicant: | CGV18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1255 of 2018 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 15 August 2019 |
| Date of Last Submission: | 15 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 4 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1255 of 2018
| CGV18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Afghanistan. The applicant arrived in Australia as an unauthorised maritime arrival on 26 November 2012.
On 14 June 2016, the applicant lodged a Class XE Subclass 790 Safe Haven Enterprise visa application. On 9 June 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the application for a Class XE Subclass 790 Safe Haven Enterprise visa.
The applicant was then referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 6 April 2018, the Authority affirmed the Minister’s decision to refuse the applicant’s Class XE Subclass 790 Safe Haven Enterprise visa application. The applicant now seeks judicial review of the Authority’s decision in this Court.
Immigration Assessment Authority’s Decision
The Authority noted in paragraph 2 of its decision, that the Minister found the applicant could reasonably relocate to Kabul or Mazar-e-Sharif, where he would not face a real chance of persecution or real risk of significant harm.
Paragraphs 3 to 10 of the decision deal with information before the Authority. In addition to the material before the Minister provided under s 473CB of the Migration Act 1958 (Cth) (“the Act”), the Authority considered the following new information:
·Country information that post-dates the delegate’s decision that relates to the Taliban presence in Ghazni province.
·Two new Department of Foreign Affairs and Trade (“DFAT”) country information reports dated September 2015 and February 2016.
·Information about Shia’s and Hazara’s, and those who returned to Afghanistan after seeking asylum abroad.
Applicant’s Claims
In paragraph 11 of the Authority’s decision, is a summary of the applicant’s claims for protection. They are as follows:
· The applicant is a Shia Hazara from Jaghori District, Ghazni Province, Afghanistan;
· In late 2007, the applicant worked for Pamlanara, an international organisation that conducted rural development projects. His role involved the restoration of canal and flood prevention walls;
· One evening, the applicant returned from work to find nobody at home. He found his wife and children had fled to his cousin’s house. His family told him that five armed masked men forced themselves into their home and threatened them. The men had accused his family of supporting foreigners because of his work with Pamlanara. His family were spared because the men were looking for him, but if the applicant had of been home they all would have been harmed;
· The applicant knew that it was no longer safe to remain in his village or in any other part of Afghanistan, so he and his family fled to Pakistan;
· If returned to Afghanistan the applicant fears he will be subjected to an extraordinary level of discrimination that will threaten his ability to subsist;
· The applicant also fears he will be harmed by the Taliban and/or other Sunni insurgent groups due to:
·his Hazara ethnicity
·his Shia religion
·his previous work and affiliation to Pamlanara, a company that developed a Hazara area
·his imputed opposition to the Taliban
·his profile as a failed asylum seeker who travelled to and returned from the west, including an imputed conversion to Christianity.
The applicant also advised that he feared harm due to attending a protest in Canberra.
At paragraph 16 of the decision, the Authority accepts the applicant’s identity and that he is a citizen of Afghanistan. At paragraph 17 of the decision, for the purposes of the application, the Authority found that the applicant’s home area is the district of Jaghori in Ghanzi Province and it is the area in which he would return to.
At paragraphs 18 to 23 of the decision, the Authority deals with events in Afghanistan prior to the applicant leaving. At paragraph 23 of the decision, the Authority concludes that the applicant fabricated his claims about working for Pamlanara and the threat he received, in order to enhance his application for protection. The Authority rejects the claim that the applicant came to adverse attention of the Taliban.
At paragraphs 24 to 29 of the decision, the Authority deals with claims that the applicant will be targeted, as he participated in a protest in Canberra and ‘his photos and videos were leaked all over”. While the Authority was prepared to accept the applicant attended the protest in Canberra, the chance that he would come to adverse attention of the Taliban, as a result, was considered remote.
At paragraphs 30 to 51 of the decision, the Authority deals with the risks associated with the return to Afghanistan and to Jaghori District. Country information was assessed. At paragraph 39 of the decision, the Authority concludes that the applicant will not face a real chance of harm from the Taliban or others in Jaghori District for reasons of his ethnicity, religion, actual or imputed opposition to the Taliban, as a Shia Hazara or for any other reason.
At paragraphs 40 to 44 of the decision, the Authority deals with the risks associated with an initial return to Kabul and onwards travel to Jaghori. At paragraph 42 of the decision, the Authority considers that the chance of harm on a one-off road trip to Jaghori is remote. At paragraph 44 of the decision, the Authority concludes that the applicant would not face a real chance of harm during a short stay if needed in Kabul, before accessing Jaghori District.
At paragraph 45 of the decision, the Authority concludes that the applicant will not be discriminated against in Jaghori and would not experience significant economic hardship or be denied basic services that threaten his capacity to subsist.
At paragraphs 48 and 49 of the decision, the Authority finds the applicant will not be imputed as a person with an affiliation with the government, international community, or other profile that would lead him to be targeted by the Taliban. The applicant’s years in a western country would not result in him being targeted or perceived as a spy, an infidel or a religious convert as a result of his time spent in Australia.
At paragraph 50 of the decision, the Authority finds the chance of being harmed as a bystander caught up in an attack or in generalised violence remote. Any generalised violence would not be for the essential and significant reason or reasons of his race, religion, nationality, membership of a particular social group or political opinion, but rather a consequence of any ongoing insurgency or insecurity present in the country overall.
At paragraphs 52 to 58 of the decision, the Authority concludes the applicant does not meet the requirements for protection under s 36(2)(a) or s 36(2)(aa) of the Act.
Grounds of Appeal
The applicant relies upon the Grounds of Appeal, filed in an amended application made 4 July 2019. Leave was granted to rely on those amended Grounds of Appeal, which are as follows:
1. The IAA misapplied s 36(2)(aa) and s 36(2B)(a)
Particulars
a) The applicant claimed to fear harm in the whole of Afghanistan by reason of his Hazara ethnicity and Shia religion.
b) In considering whether the applicant had a well-founded fear of persecution within the meaning of s5J of the Act, the IAA found that he did not because there was an area of Afghanistan, namely Jaghori, where he did not face a real chance of persecution: see s 5J(1)(c), and reasons at [39].
c)
In considering whether the applicant met the criterion in
s 36(2)(aa) of the Act, the IAA limited its consideration to the risk of significant harm in or around Jaghori and relied on its findings in relation to the criterion in s 36(2)(a): at [56].
d) Because the IAA limited its consideration to harm in Jaghori and its surrounds, it proceeded on an implicit expectation that the applicant would remain within Jaghori and its surrounds, which raised a consideration whether such an expectation was reasonable.
e) The IAA failed to consider (as it was obliged to consider) whether it was reasonable in the sense of practicable for the applicant to remain in or around Jaghori.
2. The IAA failed to consider whether the applicant had a well-founded fear of persecution in the reasonably foreseeable future.
Particulars
a) Please see [30] to [39], [51] & [56] of the IAA decision.
Applicant’s Submissions
In written submissions, Counsel for the applicant submitted that the Authority in Ground 1 misapplied the relocation test. They submitted that the Authority had only considered the risk in Jaghori, as this was where the applicant had lived for most of his life and would likely return there. Critically, the Authority did not make any finding that it was reasonable for the applicant to return to Jaghori and remain there. Reliance was placed on the case of Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at paragraph [29] (“SZSCA”):
…An expectation that he now remain within Kabul raises considerations analogous to those with which the relocation principle is concerned – specially, whether such expectation is reasonable.
Ground 2 alleges a failure to properly apply the real chance test. It was submitted that the Authority failed to consider the chances of serious harm in the foreseeable future. The assessment of the current situation in Jaghori did not consider the reasonably foreseeable future. Reliance was placed on SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292, per Flick J at paragraph [7]:
When considering whether a claimant seeking refugee status has a “well-founded fear of being persecuted” consideration must not only be given to past or present circumstances – consideration must also be given to the circumstances as they may emerge in the “reasonably foreseeable future”…or the “immediately foreseeable future”…Any difference in language between the “reasonably foreseeable future” and the “immediately foreseeable future” assumes no present relevance. Even though there may be no current risk of persecution for a Convention reason, a change in circumstances that may readily be foreseen may thus create a significant risk of persecution.
In oral submissions, Counsel for the applicant submitted it was common ground that the Authority only considered the relevant risk of persecution in Jaghori. Counsel for the applicant submitted that
s 36(2)(aa) of the Act applies to the whole of the country. Counsel for the applicant submitted that the Authority did not make a finding that it was reasonable for the applicant to return to Jaghori and submits that it should have.
It was submitted that it is not enough to just to find that it is safe for the applicant in Jaghori, the Authority must consider if it was reasonable for him to go and remain there. Counsel for the applicant suggested that it was obligatory for the Authority to determine if it was reasonable that the applicant would remain in an area that was less than the whole of the country. Counsel for the Authority conceded that the respondents submitted that if there was material that indicated the applicant would need to go outside the area of Jaghori, this would require reasonableness, but it was necessary to look at the facts.
Counsel for the applicant relied upon the decision of Perry J in ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at paragraph [19] where the following was said:
First, in determining whether it is reasonable for a person to relocate to another area for the purposes of s 36(2B) of the Act, the decision maker must not confine itself to whether the person faces a real risk of significant harm. It must also consider the practical realities for, or impact on, the visa applicant of relocation from her or his place of residence to an area of the receiving country where she or he would not face a risk of significant harm….While I note that these authorities considered the principles applicable to relocation in the context of the Refugees Convention criterion under the Act as it then stood, it seems uncontroversial that the same principles apply equally to a consideration of relocation under the complementary protection framework.
Counsel for the applicant submitted that there was country information which was acknowledged by the Authority at paragraph 37 of the decision, and that whilst the applicant may not face a real chance of harm from the Taliban or other insurgent groups in Jaghori, there was a Taliban presence in and around the provincial capital in Ghazni city and in the district of Qarabagh.
The Court was taken to the Original Irregular Maritime Arrival Entry Interview which is contained in the Court book. At page 3 of the Court book, the applicant gave his previous address as being Jaghori, Sare Loman, near intersection between Jaghori and Karabar over the hill. A similar address was given for the applicant’s spouse and in particular, his mother.
It was put to the Court that whilst it was acknowledged that the applicant had other family members who lived in Jaghori, the Authority never properly considered whether it was reasonable for him to relocate there or whether in fact he would he return to live at his previous address with his mother in Sare Loman, near the intersection between Jaghori and Karabar. No information was provided to the Court as to whether Sare Loman formed part of Jaghori or was in fact on the border with Karabar, where the country information, cited above, indicated there was a Taliban presence.
It was put to the Court that it was necessary for the Authority to consider whether it was reasonable that the applicant remain in Jaghori and by doing so, limited his ability to visit his mother at Sare Loman. It was submitted that in the absence of the consideration as to whether or not it was reasonable for the applicant to visit his mother, the Authority had then failed to ask itself a relevant question and had thus committed jurisdictional error.
As to Ground 2, Counsel for the applicant submitted that the applicant will be part of a large influx of returnees. The Authority failed to consider the applicant’s realistic capacity to find employment and the Authority failed to consider the reasonableness of his requirement to travel elsewhere in Afghanistan in order to find employment. If it was necessary for the applicant to travel, then he would, be put at risk because of his Hazara ethnicity. It was submitted that the Authority failed to consider the longer term view. It was unreasonable for the Authority to consider only that the applicant would return to Jaghori and stay there for the foreseeable future.
First Respondent’s Submissions
In relation to Ground 1, Counsel for the First Respondent submitted that the Court is bound or should at least follow the decision of Wheelahan J in AHM18 v Minister for Home Affairs [2019] FCA 409 (“AHM18”).
The primary Judge in AHM18 at paragraph [16], relied upon CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at paragraph [47], where the Full Court in that case stated:
It is only if the place or places to which an individual is likely to return are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, that a decision-maker must look at any other places in the individual’s country of nationality where neither of those kinds of risks exist. That is: places that are new or unfamiliar locations for the individual. These must be places to where it is reasonable and practicable to expect that individual to re-locate, if that terminology is to be used. It is not simply a matter of a decision-maker finding “a place” where an individual might not be exposed to persecution for a Convention reason, or to the risk of significant harm. At this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that (new) place, as the authorities have explained that assessment.
It was submitted that Wheelahan J found in AHM18 that whether or not the relocation principle applied was ‘fact-dependent’. In circumstances of that case, His Honour found that the Authority had rejected the appellant’s claims of harm in Najaf. Relocation was not material to its assessment. Further, relevantly to this case currently under consideration, His Honour held that for the purposes of complementary protection, no consideration of relocation was necessary in that case in circumstances where the Authority proceeded on the basis of its findings that the appellant would return to Najaf.
In the present case, the Authority proceeded upon its findings that the applicant would return to Jaghori, where it found, there was no real risk of significant harm or persecution.
In the present case, the Authority found Jaghori was the applicant’s home area and that he had significant family there. The Authority noted that the applicant had never lived in any other part of Afghanistan. The Authority found that the applicant had no real risk of significant harm in Jaghori. Given the Authority found the applicant would return to Jaghori, it was unnecessary to further consider if he would be at risk under
s 36(2)(aa) of the Act in other parts of Afghanistan.
In relation to Ground 2, it was submitted that this contends the Authority failed to consider the applicant had a well-founded fear of persecution in the future. It was submitted there was no error of law by referencing the future harm to the past. The High Court stated in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 575:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.
It was submitted that it was wrong to impugn the Authority’s reasoning that it had failed to consider the future based on a singular reference at paragraph 39 of the Authority’s decision to country information that Shia Hazaras are ‘currently being targeted and harmed’. What followed was a finding that the Authority was not satisfied that there was a real chance the applicant would face harm.
That alone is insufficient to indicate that the Authority proceeded on the false premise that it was limited to the current risk. It was submitted that there were other inferences that indicated that the Authority was not restricting its consideration to the current risk that it was in fact was considering the reasonable foreseeable future.
Considerations
Ground 1
The applicant submits that the Authority should not have restricted its considerations to Jaghori. It is suggested that its considerations should have been extended to the applicant’s mother’s residence, which is stated to be at ‘Jaghori, Sare Loman, near intersection between Jaghori and Karabar over the hill’. No geographical information was provided to the Court to indicate that Sare Loman is not part of Jaghori. It is not known what the reference to ‘Karabar, over the hill’ encompasses and or what distance may be involved. There is also no country information that there is a Taliban presence in Sare Loman, although it is clear that there was country information indicating a Taliban presence in Karabar. I am reasonably satisfied that the location of Jaghori, Sare Loman is part of Jaghori district.
In my view, it is speculative and there is no evidence before this Court, nor indeed was there evidence before the Authority, of the risk of harm in Sare Loman is indeed any different to the risk in Jaghori in general. In my view, on the limited information before the Court, it is impossible to distinguish between the risks in Jaghori generally and Sare Loman in particular.
This matter can be distinguished from SZSCA, as there was not material before the Authority that indicated the applicant would need to travel outside Jaghori on a regular basis for any reason. In SZSCA, there is a different factual scenario, as while the applicant had lived in Kabul, his work had taken him on a regular basis outside of it.
As there is no material before the Authority that the applicant would need to go outside of Jaghori, given that I have found that Sare Loman is part of Jaghori District, I am satisfied that there is no need to consider risks associated with outside Jaghori District.
I concur with the First Respondent’s submissions that even if I am not bound by AHM18, I should follow it. Accordingly I find no jurisdictional error is apparent on Ground 1.
Ground 2
I am reasonably satisfied that the Authority did apply the reasonably foreseeable test in the correct manner. It is clear at paragraph 39 of the decision that the Authority did draw on the country information as to current threats. No material was before the Authority that indicated the current situation was not likely to continue into the reasonably foreseeable future.
The argument being put forward by the applicant, to my mind, requires a reading of the reasons of the Authority with too fine of an eye of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
I am satisfied the Authority actually appreciated its task was to consider the risk in the reasonably foreseeable future. In considering the material, as it related to the current risks, country information was outlined and then a consideration of the risk undertaken The Authority also considered foreseeable risk that might have been posed due to the applicant having attended protests in Canberra.
At paragraph 45 of the decision, the Authority expressly considered risks “on return to Jaghori”. In my mind, this is clearly an inference as to the future risk and indicates that the Authority turned its mind to the reasonably foreseeable future. I am not satisfied that Ground 2 reveals jurisdictional error.
Conclusion
I am not that satisfied any jurisdictional error has been made out in relation to the grounds argued. I am also reasonably satisfied there is no other jurisdictional error apparent from the decision which was not agitated before this Court.
The application is dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 4 September 2019
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