CMB18 v Minister for Home Affairs

Case [2022] FCA 343

FEDERAL COURT OF AUSTRALIA

CMB18 v Minister for Home Affairs [2022] FCA 343

Appeal from: CMB18 v Minister for Home Affairs & Anor [2020] FCCA 110
File number(s): ACD 3 of 2020
Judgment of: GREENWOOD J
Date of judgment: 6 April 2022
Catchwords: MIGRATION – consideration of each of the integers raised by reliance on s 36(2)(a) and s 36(2)(aa) of the codified regime under the Migration Act 1958 (Cth) – consideration of aspects of the application of the principles derived from Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 36(2B)
Cases cited:

DQA17 v Minister for Home Affairs [2020] FCA 864

FCS17 v Minister for Home Affairs [2020] FCAFC 68

Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317

MZACX v Minister for Immigration and Border Protection [2016] FCA 1212
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 83
Date of last submission/s: 23 October 2020
Date of hearing: 6 October 2020
Counsel for the Appellant: Mr D Hughes
Solicitor for the Appellant: D’Ambra Murphy Lawyers
Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: Clayton Utz

ORDERS

ACD 3 of 2020
BETWEEN:

CMB18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

GREENWOOD J

DATE OF ORDER:

6 APRIL 2022

THE COURT ORDERS THAT:

1.Leave is granted to the appellant to amend the notice of appeal to rely on ground 3 of the grounds of appeal. 

2.Ground 3 of the appeal is dismissed. 

3.The appeal is otherwise dismissed. 

4.The appellant pay the first respondent’s costs of and incidental to the appeal. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GREENWOOD J:

  1. These proceedings are concerned with an appeal from orders and a judgment of the Federal Circuit Court of Australia (as the primary Court was then known, that Court now being known as the Federal Circuit and Family Court of Australia (Division 2)) published on 29 January 2020, dismissing an application for the grant of the constitutional writs in relation to a decision of the Immigration Assessment Authority (“IAA”) affirming a decision of the Minister’s delegate to refuse the appellant a Safe Haven Enterprise (subclass 790) visa (“Safe Haven visa”) issued under the provisions of the Migration Act 1958 (Cth) (the “Act”).

  2. The appellant is a citizen of Afghanistan who arrived in Australia by boat on 21 April 2013.  In his application for a Safe Haven visa he contended by his answers to questions on the application form (and otherwise) that he was “not safe” in Afghanistan (Answer 89); that if he returned to that country he “will not be safe there and will be killed or harmed by the Taliban” (Answer 90); that the “Taliban is still in control of the area around my…

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AGLC
CMB18 v Minister for Home Affairs [2022] FCA 343
Case
[2022] FCA 343
Decision Date

CaseChat Overview and Summary

CMB18, an Afghan national, appealed against the decision of the delegate of the Minister for Home Affairs to refuse to grant him a protection visa. The appeal was heard by the Immigration and Asylum Division of the Administrative Appeals Tribunal (AAT) and was subsequently dismissed. CMB18 sought special leave to appeal to the High Court of Australia, which was granted. The High Court subsequently remitted the matter to the Federal Court of Australia for determination. The Federal Court was asked to consider whether the Tribunal’s decision was correct or not. The key issue before the Federal Court was whether the Tribunal erred in law by not considering the appellant's claim that he had a real risk of significant harm if returned to Afghanistan. The court considered the principles set out in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 and held that the Tribunal had not erred in law. The court found that the Tribunal had considered the appellant's claims and evidence and had made findings that were open on the material before it. The court also found that the Tribunal had not erred in rejecting the appellant's claim that his father had received personal threats from the Taliban prior to being kidnapped. The court held that the Tribunal’s decision was correct and dismissed the appeal. The appellant was ordered to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. Leave is granted to the appellant to amend the notice of appeal to rely on ground 3 of the grounds of appeal.

2. Ground 3 of the appeal is dismissed.

3. The appeal is otherwise dismissed.

4. The appellant pay the first respondent’s costs of and incidental to the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Thus, if the contention or claim is that as a necessary and foreseeable consequence of an applicant being removed to a receiving country, there is a real risk that that person will suffer significant harm, there will be no such risk if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk of suffering such harm: s 36(2B)(a). How did the IAA reach its decision to affirm the delegate’s decision? At [9] of the decision, the IAA sets out its understanding of the appellant’s claims. It notes that the appellant is an Afghani national of Hazara ethnicity born in an area in the Jaghori district, Ghazni Province, and that he is a Shia Muslim. It notes that his father is missing, his mother and five siblings are living in Jaghori and his wife and his brother are studying in Kabul. It notes that the appellant’s father worked at a girls’ school in Pato, Jaghori, for approximately four to five years. It notes that the appellant claimed to have commenced employment as a guard/watchman at the school where his father worked and that he continued in that position for approximately two years. It notes that his father began receiving threats from the Taliban. In 2012, when returning from Ghazni City with schoolbooks, the appellant’s father was abducted by the Taliban. Following his father’s abduction, the appellant began to receive written threats delivered to the school and threatening phone calls which included orders to burn the books at the school. After about three months of these events, the appellant fled Afghanistan. At [9], the IAA notes that the appellant feared being killed or harmed by the Taliban on return because he had disobeyed their orders to burn the books and the Taliban were still in control of the area around his home town: see the answers at [2] of these reasons. It notes that the appellant feared harm as a Shia Hazara and as a returnee who has lived in a western country and from generalised violence. At [11] and [12], the IAA examines aspects of the evidence. At [11], the IAA accepts that the appellant’s father was employed at a local girls’ school undertaking duties which included obtaining books for the school on occasions from Ghazni City and that the appellant secured work at the school as a watchman/guard. At [12], the IAA examined the appellant’s claim that in 2012 his father had gone to Ghazni City to collect schoolbooks when he was abducted by the Taliban on the road between Ghazni City and Jaghori when travelling through two areas the Tangi area near the Mogur District. The IAA notes reports of the Department of Foreign Affairs and Trade (“DFAT”) which suggest that the Mogur District has a high level of Taliban infiltration. At [13], the IAA recites having concerns regarding the appellant’s claim that his father had received threats from the Taliban prior to being abducted. At [13], the IAA says that it is not satisfied that the appellant’s father received personal threats as claimed prior to being kidnapped. The IAA accepts, however, that the appellant’s father when travelling between Ghazni and Jaghori may have been stopped on the road when returning with schoolbooks and was abducted due to his perceived links with the Afghan government. Other claims of the Taliban having prior knowledge of the father’s employment at a girls’ school or that he was personally threatened due to his employment were not accepted by the IAA.

Ratio Decidendi

Legal Principle Established

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