CNX15 v Minister for Immigration

[2016] FCCA 733

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 733

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal applied the wrong test – whether the Tribunal had properly considered the risk of harm to the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: CNX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3280 of 2015

Judgment of: Judge Street

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Sydney

Delivered on: 4 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3280 of 2015

CNX15

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 29 October 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 is a Shia Hazara.  The applicant arrived in Australia on 7 January 2012 and applied for a protection visa on 24 May 2012.  The applicant claimed to fear harm in his village from the surrounding areas, populated by the Pashtuns.  The applicant also experienced problems with Kutchis.

3. The applicant travelled to Pakistan, Iran, Turkey, Greece and ultimately applied for protection in Italy.  The applicant was not granted a permanent visa and had to extend his protection visa every 12 months.  In 2009 the applicant’s parents found a wife for him and he returned to Afghanistan.  An alleged incident occurred involving the Taliban.  The applicant remained in Afghanistan for about a month and then returned to Italy.  The applicant then again returned to Afghanistan briefly in 2010 to see his family and his newborn son.  The applicant then returned to Italy, where he remained until 2011.

4. The applicant claims to fear harm if he returns to Afghanistan because of his ethnicity, his religion, his imputed political opinion arising from having lived in Italy for so many years, and by reason of him having unsuccessfully sought asylum in Australia, and that he feared on return in travel between particular places by road, he would be likely to suffer harm on that journey. 

5. The applicant was invited by a letter dated 10 June 2015 to appear before the Tribunal and give evidence on 16 July 2015.  The applicant appeared on that date by video conference to give evidence and present arguments, and was assisted by an interpreter and had a registered migration agent representing him by telephone.  Prior to the hearing, the applicant’s representative provided submissions dated 8 August 2014, and following the hearing further submissions were provided, dated 24 July 2015. 

6. The Tribunal provided to the applicant’s representatives further country information, being the more recent report that had been obtained, which was provided under cover letter dated 8 October 2015, and was the subject of submissions in response by the applicant’s legal representative, his migration agent, by letter dated 8 October 2015. 

7. The Tribunal identified those submissions, which it took into account in its reasons, relevantly at para.45 in footnote 80.  The Tribunal made adverse credit findings in relation to the applicant, and found the applicant was not a witness of truth and that his protection claims were false.  The Tribunal found that the risk of the applicant suffering serious harm in his village where he would live was remote. 

8. The Tribunal also referred to the areas which the applicant would have to travel by road and found that the applicant was not a person who was really at risk on the road to travel, and referred to the DFAT report that stated that persons of the applicant’s ethnicity are not systematically or disproportionately targeted.

9. The Tribunal found that the risk of the applicant suffering serious harm in Afghanistan was remote, and found that there was not a real chance the applicant would suffer serious harm in Afghanistan.  The Tribunal found the applicant does not have a well-founded fear of persecution based on a Convention reason.  The Tribunal found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Afghanistan, there is a real risk he will suffer significant harm.  It was in those circumstances that the Tribunal affirmed the decision of the delegate. 

10. On 11 February 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

11. The grounds of the application are as follows:

    1. The second respondent committed a jurisdictional error by failing to properly determine the applicant's protection claims in that it:

    a. Failed to address whether the applicant faced a real chance of being persecuted while travelling from Kabul to Dalkundi on account of his race and instead addressed whether the applicant would be “systematically or disproportionally targeted” because of his race.

12. At the commencement of the hearing, the Court explained to the applicant that the nature of the hearing was to determine whether the Tribunal’s decision was affected by legal error.  The applicant confirmed that he understood the nature of the explanation given. 

13. The applicant took issue with the Tribunal and the delegate not accepting his evidence, and maintained that his life would not be safe if he returned to Afghanistan, and maintained that he could not go back there.  Very tragically, the applicant identified that his son had passed away about a month ago and that his father had also recently passed away. 

14. The Court explained to the applicant that it did not have power to make fresh findings of fact on the merits.  The Court also explained that it did not have power on compassionate grounds to find legal error by the Tribunal.  The applicant submitted that the Tribunal had not considered the risk of danger he would face, and the difficulties he would face in his village.  The applicant maintained it was very dangerous for him to return to Afghanistan.  The solicitor for the first respondent, Mr Keevers, submitted that nothing said by the applicant identified any jurisdictional error by the Tribunal.  It was submitted that the applicant’s submissions were in substance an impermissible invitation to review the merits of the matter which is beyond the jurisdiction of this Court.  Mr Keevers drew attention to the consideration by the Tribunal of the applicant’s claims and in particular, the finding that the risk of the applicant suffering serious harm in his village was remote and identified that the Tribunal had considered the applicant’s claims in relation to travelling by road between particular locations.

15. Mr Keevers said that the reference to Hazaras not being systematically or disproportionately targeted was a reference to the DFAT report and was part of the overall reasoning of the Tribunal and did not reflect any misunderstanding of the jurisdiction of the Tribunal or any legally erroneous test.  Mr Keevers, on behalf of the first respondent, drew attention to the Tribunal’s finding that the risk of the applicant suffering harm travelling between particular locations was remote and the Tribunal’s reference to the fact that this inference was supported by the finding that the applicant has twice travelled back to his native village from Italy, and on the findings made by the Tribunal there was no credible evidence that he had suffered harm in doing so. 

16. The solicitor for the first respondent also drew attention to the adverse findings in relation to the applicant’s claims, both individually and cumulatively, and the adverse findings in paras.43 and 51.

17. It is apparent from the Tribunal’s reasons that the Tribunal did take into account the applicant’s claims in relation to his travel from particular locations.  The Tribunal also took into account the applicant’s ethnicity. 

18. There is no substance in the contention that the Tribunal failed to address the applicant’s claims as advanced.  The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  I accept that the first respondent’s submission that the reference to “systematically or disproportionately targeted” was a reference to the DFAT report and was not an application of any erroneous test by the Tribunal.  Ground 1 of the application fails to make out any jurisdictional error.

19. Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal.  For these reasons, the application must be dismissed.  However, I do wish to add that the applicant’s circumstances are ones, in respect of which, it may well be open to the applicant to make representations to the Minister.  The merits of any such application are a matter for the Minister.  The Court notes, in this regard, that the applicant presented before the Court as a person of integrity and the recent tragedy referred to is a matter that the Minister might wish to take into account.

20. The application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016