CML17 v Minister for Immigration
[2021] FCCA 264
•16 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CML17 v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 264 |
| Catchwords: MIGRATION – Protection visa – whether finding that reasonable for applicant to relocate to location in home country unreasonable, irrational or illogical – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 5J(1)(c), 36(2B), 36(2)(aa), 473CA, 473CB, 473DC, 473DD, 473DD(a) & (b) Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 CQI16 v Minister for Immigration and Border Protection [2019] FCA 718 |
| Applicant: | CML17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 217 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 3 June 2019 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 16 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Barnes |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the Respondents: | Mr T Ellison |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 217 of 2017
| CML17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 19 May 2017. That decision affirmed the decision of the then Minister for Immigration and Border Protection (‘the Minister’), made 20 September 2016, refusing the applicant a Temporary Protection Visa (subclass 785) (‘the visa’).
The application proceeded by way of the Third Amended Application filed on 24 May 2019 which contained three grounds. In summary, grounds 1 and 2 allege that it was illogical, irrational and unreasonable for the IAA to find that the applicant faced a real risk of significant harm if returned to his home town but that he should be relocated pursuant to s 36(2B) of the Migration Act 1958 (Cth) (‘the Act’) as he was found to not face a real chance of persecution in all areas of the receiving country under s 5J(1)(c) of the Act. After submissions and on the joint application of counsel, these proceedings were adjourned pending the outcome of the decision of the High Court in the matter of BVD17 v Minister for Immigration and Border Protection.[1] Following publication of that decision, the parties indicated that they did not seek to make any further submissions in this matter.
[1] (2019) 93 ALJR 1091.
The third ground relates to the interpretation of the third limb of the definition of a well-founded fear contained within s 5J(1)(c) of the Act.
The grounds of the application, along with detailed particulars, are reproduced verbatim below:
“1.The Immigration Assessment Authority (IAA) fell into jurisdictional error in finding that it was reasonable for the Applicant to relocate to Kabul because the finding was illogical and irrational in all of the circumstances;
PARTICULARS
1.1.The evidence before the IAA could not logically lead to the findings it made that:
(a) It was reasonable for the Applicant to continue to live separated from his family for the foreseeable future; [Reasons at 44]
(b) That the Applicant is a single man with no vulnerabilities; [Reasons at 44]
(c) That the Applicant would be able to find accommodation with other single men; [Reasons at 46]
(d) That the Applicant would not be like many new arrivals and would not necessarily be one of those who only earn enough to live in a slum; [Reasons at 47]
(e) That the Applicant had the skills and abilities to support himself without the support of his relatives; [Reasons at 47]
(f) That the Applicant would be able to establish himself and support his family. [Reasons at 47]
1.2.It was not open on the evidence to find that it was reasonable that the Applicant should relocate to Kabul because:
(a) There was no evidence of any traditional support mechanisms available to him in Kabul;
(b) There was no evidence of any accommodation which would be available to him in Kabul;
(c) There was no evidence that the Applicant would have access to livelihood opportunities suitable to support and sustain his family.
2.In the alternative to ground 1 above, the IAA fell into jurisdictional error in finding it was reasonable for the Applicant to relocate to Kabul because the finding was unreasonable in all of the circumstances;
2.1.The Applicant says that having regard to:
(a) The Applicant’s claims that:
(i)He would not be able to earn a livelihood in Kabul sufficient to support himself and his family; [Reasons 47]
(ii)He has no friends in Kabul and has nowhere to live. [Reasons 46]
(b) The accepted evidence that:
(i)The Applicant has been effected by his kidnapping in 2011 and the separation from his family; [Reasons 44]
(ii)His family in Kabul may prove unwilling to assist him; [Reasons 46]
(iii)He is responsible for the care of his wife, five children and his mother. [Reasons 44]
(c) The totality of the Country Information evidence before the IAA regarding conditions in Kabul. [Reasons 29 to 47]
It was outside the bounds of legal reasonableness to find it was reasonable for the Applicant to relocate to Kabul.
3.The IAA committed jurisdictional error in failing to consider within the assessment of the real chance of serious harm or real risk of significant harm in Afghanistan whether, in order to avoid such a chance or risk, the applicant could reasonably be expected to relocate, and in particular whether it was practicable for him to do so, but confined his consideration to whether there was a real chance of serious harm in all areas of Afghanistan or a significant risk in all areas of Afghanistan.
PARTICULARS
3.1Having found that there was a real chance of serious harm if the Applicant returned to his home area, the Minister was then required to consider, under s. 5J(1)(c) whether the real chance “relates to all areas of a receiving country” namely, Afghanistan.
3.2The Minister interpreted s. 5J(1)(c) to mean that the Applicant would not have a well-founded fear of persecution if he would not face “serious harm” in an alternative location within Afghanistan, i.e. Kabul.
3.3In considering whether or not it was reasonable to expect the Applicant to relocate within Afghanistan but confiding that consideration to whether the Appellant would suffer “serious harm” per s. 5J(1)(c), or “significant harm” per s. 36(2B), the Minister erred.
3.4Section 5J(1)(c), properly construed, does not have the effect of excluding the requirement to consider whether it is reasonable in the sense of practicable to expect the Applicant to relocate to another part of Afghanistan: SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18.
3.5This is because if it is not reasonable for the Applicant to relocate to another part of the same country, his fear of persecution relating to the entire country, is well founded. The requirement that the well-founded fear of persecution relate to all areas is satisfied if there is a connection with or association with another area of the country: Project Blue Sky Inc and Others v ABA [1998] HCA 28; (1998) 194 CLR 355, at [87]. That connection or association will be established at the place of purported relocation, not only where there is a real chance the Applicant will experience serious harm within that place, but if it is not reasonable in the sense of being practicable for him to remain there, for the reason that if it is not reasonable for him to remain there, he may be forced to return to the place where there is a real chance he will be subjected to serious harm.
3.6In misconstruing and misapplying s. 5J(1)(c), the Minister failed to consider and apply the proper test for internal relocation, and thereby erred.
Background
The applicant is a Hazara Shira and a national of Afghanistan, originating from the Qarabagh Ghazni Province.
The applicant has previously made a failed application for asylum in the UK where he resided from 2003 until his deportation back to Afghanistan in January 2009 at which time he returned to live in the Qarabagh District.
The applicant entered Australia on 1 November 2012 as an Irregular Maritime Arrival, was first interviewed on 28 November 2012, and was formally invited to apply for a Protection Visa on 22 May 2015. On 7 July 2015 the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) came into force and after an additional written invitation from the Minister, the applicant, assisted by his migration agent, lodged a protection visa application on 15 July 2015.
He claimed to fear harm for the following reasons if returned to Afghanistan:
a)From 2012 he ran a grocery and petrol store in the Qarabagh District. In September of 2011 the Taliban stole petrol and he was beaten and detained by them as a result of his objections. He was only released after his family paid a substantial sum;
b)As a result of his time in the UK he developed beliefs which were not supported by other members of his community. These included religious and human rights beliefs such as those relating to women’s rights and education; and
c)He had begun an affair with a married woman whose husband held “strong ties” with the Taliban. He had fled to Australia after the affair was discovered by the husband and later received information that the Taliban had placed a reward for information relating to him.
The decision of the Minister
The application for a temporary protection visa was refused by the Minister on 20 September 2016.
It was accepted that the applicant would face a real chance of persecution and harm by the Taliban if returned to his home area, however, in considering s 5J(1)(c) of the Act, the Minister concluded that the applicant did not face a real chance of persecution in the city of Kabul, whether as a result of the affair with the wife of a Taliban connected man, or for any other reason. As such he could reasonably relocate to Kabul where he would not face a real risk of ‘significant harm’ in accordance with s 36(2)(aa) of the Act.[2]
[2] CB, 137-146.
The IAA decision
On 26 September 2016, the Minister’s decision was referred to the IAA pursuant to s 473CA of the Act.
In making its determination, the IAA had regard to information referred to it from the Secretary under s 473CB and was provided further information from the applicant’s representative pursuant to s 473DD of the Act.
The additional information provided included country information relating to tribal affiliations within the applicant’s home area of Jangalak in the Qarabagh District as well as a supplementary statement describing his mental and physical health.
The power of the IAA to ‘get’ new information is established by s 473DC which provides:
‘473DC Getting new information
(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.”
Section 473DD of the Act confines the IAA’s consideration of new information to exceptional circumstances and provides as follows:
“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.”
Additional country information published before the Minister’s decision was rejected by the IAA for not satisfying the requirements of s 473DD. Country information which was published after, or on, the date of the Minister’s decision was however accepted. The IAA was satisfied there were exceptional circumstances justifying the inclusion of the new country information and was further satisfied that it could not have been previously provided, meeting the criteria of both s 473DD(a) and s 473DD(b)(i).[3]
[3] CB, 195-197.
The supplementary statement in which the applicant claimed to be suffering from post-traumatic stress, depression, and ongoing head pain as a result of the Taliban’s attack on him, was considered by the IAA as not satisfying s 473DD(b)(ii) requirements. This conclusion was based on the finding that no medical evidence had been provided to support the credibility of the statement as new personal information and further this was not information which could not have been brought before the Minister previously.[4]
[4] Ibid.
The IAA accepted the applicant’s claims that he held certain human rights beliefs but was not satisfied these beliefs caused him to be threatened or that he had engaged in an affair causing him to become a Taliban target. It was accepted, however, that the petrol theft incident and related events had occurred and it was found that the applicant faced a real chance of being killed if returned to the Qarabagh District. It was found, however, that he would not face a real chance of harm in the area of Kabul for reason of being a Shia Hazara having sought refuge in a western country because of his beliefs or because he was known to the Taliban as a result of the petrol theft incident.
Consequently, it was found that the applicant did not face a real chance of persecution in all areas of the receiving country under s 5J(1)(c) of the Act. It was further concluded that he would not suffer ‘significant harm’ under the complementary protection assessment and it would therefore be reasonable for the applicant to relocate to Kabul, pursuant to s 36(2B) of the Act.
The Minister’s decision was affirmed by the IAA on 19 May 2017.
Submissions
Grounds one and two
The applicant accepts, as well established, the principle that a person is not a refugee within the terms of the convention if it is possible for him to seek the protection of his country of origin by relocating to another part of that country where he will not be at risk of persecution or serious harm. It is also well established that a condition for the application of that principle is the question of whether in all the circumstances it would be reasonable to expect an applicant to seek refuge in another part of the country in the sense of being practicable in the circumstances of the applicant and the impact on the applicant of a relocation within the country of origin. This is a factual enquiry and the assessment is to be made, “taking into account what it is really like to live in the place said to be safe”.[5]
[5] MZANX v Minister for Immigration and Border Protection [2017] FCA 307 [50].
It was submitted by Mr Barnes that there was a significant amount of evidence before the IAA with respect to the security situation in Kabul which showed that there were frequent attacks which deliberately targeted Shia Hazaras. Further, it was submitted that the IAA accepted other country information which established practical difficulties which would face returnees to Kabul.[6]
[6] CB 209 [41], 210 [42], 211 [46].
The applicant had stressed that he would face practical difficulties in relocating to Kabul by virtue of the following matters:
a)He would have to take responsibility for the care of his wife, mother and five children;
b)He was adversely affected by his 2011 kidnapping and separation from his family;
c)He would face significant difficulties in obtaining employment;
d)He has no friends in Kabul and no accommodation; and
e)His family may prove to be unwilling to assist him.
The IAA found that it was reasonable that he should relocate despite these matters and that he could live apart from his family, as a single man, who would find accommodation in Kabul with other single men and would be able to find employment sufficient to provide for himself and his family. It was submitted that the findings of the IAA in that regard were mere generalisations indicative of a “broad brush” approach which was inadequate to support the ultimate finding.[7]
[7] Ibid [50], [60]-[61].
In addition to that criticism, the applicant submits that the IAA relied for support of its findings on country information which dated from 2012 from the Danish Immigration Service (‘DIS Report’). The applicant contends that the IAA relied on that report to make the finding that the applicant would be able to integrate with his own ethnic community in Kabul and that his ethnic group in that context would provide protection for him.[8] The passage in the DIS Report relied on refers to this being the case for young men but the applicant is not a young man. Further he submits that he will likely be pressured by his family to return to his home district where he is at risk. Finally, it was submitted that the DIS Report evidenced that there had been a Presidential Decree in Afghanistan in 2005 to the effect that all internally displaced people would be required to return to their place of origin with the assistance of “aid organisations and donors”. This was not a matter referred to by the IAA but was evident from a copy of the DIS Report on which the applicant relied for the purpose of this hearing.
[8] CB 212 [46].
In summary, it was the submission of the applicant that the IAA’s analysis did not amount to an active intellectual engagement with the material before it and did not contain the degree of specificity required of it before it concluded that it was reasonable for the applicant to internally relocate. The decision as to relocation was legally unreasonable. It was submitted that the error was material to the outcome.
For reasons which will become apparent below, it is not necessary for me to summarise the submissions made by the applicant with respect to ground three.
Submissions of the first respondent
The first respondent submitted that a fair reading of the decision of the IAA demonstrated that it undertook a close analysis of the claims and material before it. It specifically considered a range of country information from the UNHCR, DFAT and other sources which supported the finding that single able bodied men can re-establish themselves in Kabul depending on their circumstances.[9] It also considered in detail matters relating to the physical and psychological condition of the applicant,[10] his family and social connections,[11] the availability of accommodation,[12] prospects for employment,[13] and the impact on the applicant if he were to live apart from his immediate family given the significant periods of time he had spent away from them.[14]
[9] CB 210 [43].
[10] CB 211 [44].
[11] CB 206 [31], 211 [45].
[12] CB 211 [45]-[46].
[13] CB 212 [47].
[14] CB 212 [44], [47].
From the above it was submitted that the IAA not only made a determination that it was reasonable for the applicant to relocate but considered and made findings in relation to the necessary components and implications of what relocation would involve for him. There was significant evidence available to the IAA, on which it relied, to refute the applicant’s claim that relocation to Kabul was not a reasonable option for him. It was submitted that the finding of the IAA was open to it and could not be said to have been irrational, illogical or unreasonable.
Consideration
I will deal firstly with ground three. It was acknowledged by the applicant that at the time of hearing, the ground was misconceived because the Court was bound by the decision of White J in the matter of CQI16 v Minister for Immigration and Border Protection.[15] Counsel for the applicant submitted that the argument raised in that matter was subject to an appeal in another matter before the Full Court and that his client wished to preserve his position on that ground depending on the outcome of the appeal. The decision he referred to was in the matter of FCS17 v Minister for Immigration and Border Protection.[16] That decision cited the decision in CQI16. The Full Court has now affirmed the decision in FCS17.[17] Ground three therefore fails and I dismiss it.
[15] [2019] FCA 718.
[16] [2019] FCCA 1024.
[17]
As to grounds one and two, I am not satisfied that the applicant has established jurisdictional error. The applicant’s analysis of the reasonableness requirement of relocation is not at fault. It is the application of those principles to the reasons of the IAA that demonstrates that his complaint is in reality a complaint as to the outcome and a request for a merits review. The IAA relied on a variety of sources for country information which it accepted. The decision was not simply predicated on an acceptance of the DIS Report. It is well established that it is for the reviewing authority to determine what country information it accepts and relies on for the purpose of its’ determination.[18] That is so, even if the country information is not correct.[19] The question of the weight to be given to evidence has been described as ‘par excellence’ a matter for the reviewing authority. In considering the country information, the IAA placed significant weight on information from a variety of sources that it regarded as reliable to the effect that even without a support network, single able-bodied men without vulnerabilities could establish themselves in Kabul depending on their circumstances.[20] It then embarked on a further consideration of the circumstances of the applicant in light of that information.[21] It concluded that Afghan people will usually join members of their family and stay with them in Kabul.[22] With respect to the complaint of the applicant that the IAA made the finding about his ability to integrate with his ethnic community and thereby find a form of protection, it is correct to note that the passage referred to related to ‘young men’ and that the applicant was born in 1973.[23] However, that observation was simply one aspect of a broader consideration by the IAA of the applicant’s circumstances. In the relevant passage, the IAA was considering the practical implications for the applicant in the event that he did not reside with his wife and family. It concluded that like other Afghan men, the applicant would be able to rent a flat with others.[24]
[18] NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 [11].
[19] Ibid.
[20] CB 210 [43].
[21] CB 211-212.
[22] CB 211 [45].
[23] CB 54.
[24] CB 212 [46].
For the purpose of argument, the applicant relied on a copy of the DIS Report tendered on the day of hearing.[25] I have considered that document. In considering the issue of problems with accommodation and rental prices in Kabul, the DIS Report noted that as far as rent paid by single people was concerned, they would normally live with friends and rent a flat together with others.[26] The reference to the ability of “young single men” occurs in a separate part of the discussion and was in response to an enquiry made by the report writer about the ability of “young single men” to manage on their own in Kabul.[27] No examples were identified and as a result the report had nothing to say on that topic. However, the ability of single men in Kabul to rent a flat with others was not confined in the DIS Report to the category of ‘young’ single men. When the first passage is considered in light of the second there is no reason to infer that the observation in the first was confined to a category of ‘young’ single men. It appears from the Report that the two passages were commenting on information from different sources. On any view, the finding by the IAA with respect to the ability of the applicant to rent a flat with others was open to it on the DIS Report.
[25] Exhibit A2.
[26] Ibid, 13.
[27] Ibid.
Turning to the finding by the IAA with respect to the ability of young single men to integrate with their ethnic community when they arrive in Kabul, the relevant passage on which that finding was based appears earlier in the Report.[28] As I have noted, the IAA referred to it in the context of considering a range of factors relating to the ability of the applicant to find accommodation and settle in. It did not make a finding that the applicant was a young man. There is no basis for inferring that the IAA was unaware of the correct age of the applicant given the materials it had before it and that it was aware of his history of having entered and lived illegally in the United Kingdom between 2003 and 2009.[29] Understood in that context, I am not satisfied that it was unreasonable, irrational or illogical for the IAA to have made reference to the ability of young single men to settle in and mix with their own ethnic group in Kabul when considering the circumstances of the applicant as a single man having to find accommodation and settle in to life there. That is particularly so given it had already found that single men were able to settle into Kabul sufficiently to find rental accommodation with others. The point of the findings made by the IAA appears to have been that single men can settle in and adapt to life in Kabul. Further still, with respect to his status as a Hazara in Kabul, the IAA had made an anterior finding that it was not satisfied that the applicant would suffer discrimination of a level which would threaten his capacity to subsist.[30] In my view, the argument of the applicant seeks to place significance on a single sentence in the reasons which it does not hold when they are read as a whole. To accept the submissions of the applicant in that regard would be to construe the decision of the IAA “minutely and finely with an eye keenly attuned to the perception of error”.[31]
[28] Ibid, 10.
[29] CB 198 [12].
[30] CB 207 [33].
[31] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9, quoting Politis v Federal Commissioner of Taxation(1988) 16 ALD 707 at 708 per Lockhart J.
With respect to the other matters to which the applicant referred in his submissions, I am satisfied that the reasons of the IAA disclose that it did give consideration to the question of relocation in terms of practicability for the applicant, including in the sense of what it would be really like for him to live in Kabul. It made a detailed analysis of the claims and the circumstances of the applicant and applied them to a considerable amount of country information. The findings it made were at least open to it. In this matter, the contentions of the applicant fall into a similar category as those in NAHI[32] where the Full Court had this to say:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[32] Op cit, [10].
I dismiss grounds one and two.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 16 February 2021
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