CPE16 v Minister for Immigration and Border Protection
[2019] FCA 2007
•29 November 2019
FEDERAL COURT OF AUSTRALIA
CPE16 v Minister for Immigration and Border Protection [2019] FCA 2007
Appeal from: CPE16 v Minister for Immigration [2018] FCCA 3325 File number: NSD 2312 of 2018 Judge: JAGOT J Date of judgment: 29 November 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia – whether the Immigration Assessment Authority committed jurisdictional error in its assessment of the risk of harm to the appellant if the appellant relocated to Kabul – whether the primary judge erred in holding that the Authority’s jurisdictional error was not material – jurisdictional error material – appeal allowed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J(1), 5J(1)(c), 36(2B) Cases cited: CPE16 v Minister for Immigration [2018] FCCA 3325 Date of hearing: 12 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: Mr D Godwin Solicitor for the Appellant: Stephen Hodges Solicitor Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
NSD 2312 of 2018 BETWEEN: CPE16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
29 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court of Australia dated 16 November 2018 be set aside.
3.The decision of the Immigration Assessment Authority dated 17 August 2016 be set aside.
4.The matter be remitted to the Immigration Assessment Authority for determination according to law.
5.The first respondent pay the applicant’s costs of the appeal as agreed or taxed.
6.The first respondent pay the applicant’s costs of the application before the Federal Circuit Court of Australia as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal against an order of the Federal Circuit Court of Australia (FCC) made on 16 November 2018 in CPE16 v Minister for Immigration [2018] FCCA 3325 dismissing the appellant’s application for judicial review of a decision of Immigration Assessment Authority (IAA) made on 17 August 2016 affirming a decision of the Minister’s delegate not to grant the appellant a protection visa.
The appellant applied for a Safe Haven Enterprise Visa (SHEV) on 16 October 2015. A delegate of the Minister refused to grant the visa on 20 June 2016. On 17 August 2016, the IAA affirmed the decision not to grant the appellant a SHEV. The appellant applied to the Federal Circuit Court of Australia for an order quashing the decision of the IAA for alleged jurisdictional error. The Federal Circuit Court dismissed the application: CPE16.
The primary judge concluded that the IAA had failed to consider whether the appellant would face a real risk of significant harm if he were to travel between Kabul and Herat for his petrol selling business but that this failure was not material because “…the Authority would inevitably have relied on its finding that, given ‘the applicant worked as a welder for several years prior to commencing his petrol business and he has the ability to work and make a living in an industry entirely unrelated or connected to the government’”, it “…would not be unreasonable for the applicant to choose to return to that or another profession”: [65].
I have reached the contrary conclusion. In my view, the IAA’s consideration of the applicant’s claims as a whole miscarried because the IAA failed to consider the fact that if the applicant relocated to Kabul and operated his petrol selling business from there (as the IAA found he could) it would necessarily involve travel between Kabul and Herat in respect of which the IAA had found that the appellant would face a significant risk of harm. The IAA’s misconception about the applicant’s petrol selling business was complete and pervasive. Without it, it is not possible to know whether the IAA would have made its key findings at [41] relating to the applicant potentially working as a welder. Nor is it possible to be satisfied that it was inevitable that, if the IAA had not been in error about the risk of harm to which the petrol business would expose the applicant, it necessarily would have relied on its finding that it would not be unreasonable for the applicant to choose to return to welding or another profession. In contrast with the view of the primary judge, I do not consider that the IAA’s reliance on the alternative findings would have been inevitable and nor am I satisfied that the alternative findings were not themselves affected by the IAA’s error about the risk of harm to which the petrol business would expose the applicant. Further, I do not accept the Minister’s notice of contention that the primary judge erred in holding at [54] that the IAA failed to consider whether, if the appellant were to relocate to Kabul and continue to operate his petrol selling business without modification, the operation of that business would require the appellant to travel between Kabul and Herat, via Ghazni, by bus.
I explain my reasons for these conclusions below, noting that the grounds of appeal on which the appellant relied were as follows:
1.The primary Judge erred in concluding that the error by the Authority in assessing the reasonableness of the applicant relocating to Kabul on the basis that he would restart his petrol business there was not material and thus not jurisdictional.
2.The primary judge erred in finding that in assessing the materiality of the error referred to in ground 1 he could assume that the Authority would inevitably have relied upon its finding as to “reasonable modification of behaviours” made for the purposes of s 5J in its assessment of reasonableness of relocation under s 36(2B)(a).
Section 5J identifies when a person has a well-founded fear of persecution for the purpose of the definition of “refugee” in s 5H of the Migration Act 1958 (Cth). By s 5J(1)(c) the real chance of persecution must relate to all areas of the receiving country. Section 36(2B)(a) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.
The IAA’s reasoning
The IAA accepted that the appellant is a citizen of Afghanistan, a Hazara and a Shia Muslim. The appellant is from a village in the Jaghori district in the Ghazni province. The appellant worked as a casual labourer and then for himself as a welder, and in 2008 began working as a petrol seller.
The appellant’s petrol selling business involved him travelling by bus to Herat, purchasing barrels of petrol and arranging for the petrol he purchased to be delivered to a market in Kabul. The appellant would then travel to the market in Kabul to sell the petrol that he had purchased from Herat. The appellant did this once or twice a month, and on at least one occasion sold petrol to the Afghan National Army (ANA).
On one occasion the driver that was transporting a load of fuel to Kabul was stopped by the Taliban and held for five days, during which he was tortured because he was suspected of selling fuel to the ANA. Once the driver was released he called the appellant and informed him that he had provided his name from an invoice for the fuel, and provided some personal details to the Taliban about the appellant. However, the IAA did not accept the appellant’s claims that the truck had been specifically targeted by the Taliban, nor that the appellant was providing support to the ANA.
A key aspect of the appellant’s petrol business was that it necessitated travel to Herat where the petrol could be purchased for delivery to Kabul where it could be sold at a profit. The IAA found the appellant’s evidence about his petrol business to be “forthright and clear” and accepted that he was involved in such a business: [21].
The IAA said that the appellant made no specific claims to have suffered harm in his home area (the Jaghori district in Ghazni province) other than the claims related to his petrol business: [32]. The IAA found that there is a real chance the appellant would be seriously harmed if he were to return and live and work in his home area in Jaghori district, Ghazni province, due to the real risk that, as a Hazara Shia, the appellant may be seriously harmed in the form of kidnapping, detention, violence of death at the hands of the Taliban or other agencies “…while travelling on the roads around his home area”: [35] and [36]. The IAA repeated this finding at [61].
The IAA noted that s 5J(1)(c) of the Migration Act required consideration not just of the appellant’s home area but “all areas of a receiving country”: [37]. Accordingly, the IAA considered the position of the appellant in Kabul. The IAA noted that the appellant had said he would resume being a petrol vendor if returned to Afghanistan: [39]. The IAA then found that the appellant could resume his petrol business on return to Kabul “…and this would not result in him having any profile or association that would put him at risk of harm”. The IAA then said this:
On a separate and independent basis, if the applicant wishes to further avoid any chance of him being harmed or targeted in connection with his business, I am satisfied he could take reasonable steps to modify his conduct to avoid that harm. If the applicant was concerned that his business could put him at risk of harm, it would be open to him to take reasonable steps to modify his business practices. I find it would be reasonable for the applicant to take steps to ensure that he did not provide or sell petrol to the ANA or other high profile entities, or operate his business in a way that would impute him with any political opinion or association with the government. I also find it would be reasonable for him to instead focus, as he did in the previous three years, on selling petrol to smaller businesses and shop holders and avoiding customers that are connected to the ANA or other high profile customers. Alternatively, I note that the applicant worked as a welder for several years prior to commencing his petrol business and he has the ability to work and make a living in an industry entirely unrelated or connected to the government. I consider it also would not be unreasonable for the applicant to choose to return to that or another profession in Kabul.
On this basis the IAA said at [43]:
I am satisfied that if the applicant returned to live in Kabul, and recommenced his petrol business there is not a real chance that he would be harmed by the Taliban or other AGEs on the basis of his past history selling petrol in the city, or on the basis of any future business he may undertake on return to Afghanistan.
In dealing with the issue of relocation posed by s 36(2B) of the Migration Act, the IAA referred to the findings it had made for the purposes of s 5J(1) and said that for the reasons that follow, it was satisfied that it would be reasonable for the appellant to relocate to Kabul. The IAA then said this:
66.In term of his capacity to find work, the applicant is an able-bodied man of working age that has no specific vulnerabilities and lacks any profile that would put him any additional risk while working in Kabul. I accept that Kabul is a poor city and unemployment is an issue, however the applicant's skills and experience demonstrate he has the capacity and ability to find work. The applicant speaks Hazaragi and has completed some schooling. He has worked as a labourer, and between 1999 and 2007 he worked as a welder. After this he started his petrol business. Given his experiences and skills, I am satisfied the applicant would be able to establish himself in Kabul and make a living. In terms of recommencing his business, the applicant has contended that under complementary protection he cannot be forced to modify his behaviour. As I have found that the applicant would not face a real chance or real risk of harm if he recommenced his petrol business in Kabul without modification, the question of whether the complementary protection assessment allows for the consideration of behaviour modification does not arise.
67.The applicant also has experience being in Kabul, albeit for short times, and he has three years of experience selling his product in markets to different customers in the city. He is familiar with Kabul and the roads leading to the city. These factors are a strong indicator to me that the applicant has a range of skills and work experience, and the ability to live and work in Kabul and provide for his family and mother. I am satisfied that this background would assist him and his family to integrate into life in Afghanistan.
Consideration
Consistently with the conclusion of the primary judge at [54], I infer that the IAA failed to consider the fact that if the appellant recommenced his petrol selling business in Kabul it would require him to travel to Herat to buy the petrol and to return to Kabul from Herat which would take him through the very areas of the Ghazni province which the IAA had found were dangerous to the appellant: at [35], [36] and [61]. This inference is consistent with the fact that the IAA expressly refers only to the appellant not having any profile or association that would put him at risk of harm if he returned to the business of petrol selling at [40] without referring to its other findings that the petrol selling business involved travel to and from Herat. At [41] the IAA refers to the appellant being able to modify his conduct in association with the business without confronting the fact that an inherent part of the business is travel to and from Herat. Further, at [66] the IAA expressly refers to the appellant not facing a real chance or real risk of harm is he recommenced his petrol business in Kabul without modification. The only rational way to reconcile the IAA’s findings is to infer that it failed to consider that the petrol business itself necessitated travel to and from Herat when it was carrying out its assessment for the purposes of s 5J(1)(c) and s 36(2B)(a) of the Migration Act. For these reasons the Minister’s notice of contention cannot be sustained.
I have reached a different conclusion from the primary judge about the inevitability of the IAA relying on its alternative finding that it would not be unreasonable for the appellant to return to welding or another profession for the following reasons:
(1)The IAA’s error about the petrol business was fundamental. The risk to the appellant on the roads around his home area which he had to travel for the petrol business was at the heart of his claims to a protection visa. The IAA referred to the appellant’s evidence that if he returned to Afghanistan he would resume being a petrol vendor but could not properly weigh that evidence into its assessment because it wrongly believed that the petrol business could be conducted in Kabul alone without any need to travel from Kabul to Herat through the appellant’s home area. The error is so fundamental that it puts in doubt the entirety of the IAA’s consideration of the appellant’s circumstances.
(2)The IAA’s final finding in [41] is expressed as an alternative but it is not possible to know what impact the IAA’s fundamental error had on that finding. Nor is it possible to know what the IAA would have made of the appellant’s evidence that if returned to Afghanistan he would resume being a petrol vendor but for its error.
(3)In these circumstances it is not possible to be satisfied that the alternative finding is unaffected by the IAA’s error about the petrol selling business.
(4)In any event, the final finding at [41] that it would not be unreasonable for the appellant to choose to return to welding or another profession in Kabul did not involve an assessment of the reasonableness of relocation to Kabul for the purposes of s 36(2B)(a) of the Migration Act. It was a finding made for the purpose of s 5J(1)(c) of that Act.
(5)When the IAA came to consider the reasonableness of relocation to Kabul for the purposes of s 36(2B)(a) of the Migration Act it made the same fundamental error about the nature of the petrol business. It is not possible to separate out that error from the IAA’s conclusion that it would be reasonable for the appellant to relocate to Kabul. While the IAA referred to the appellant’s skills and experience, and his work as a labourer and welder, it did so in the context of its erroneous findings about the appellant’s capacity to return to his petrol business without modification. It also did so without having to confront the issue of the appellant’s evidence that he would resume his business of selling petrol if required to return to Afghanistan and how that evidence might affect its assessment of the reasonableness of the appellant’s relocation to Kabul.
I am unable to be satisfied that, in the face of such a fundamental and pervasive error, the IAA discharged its statutory function. I agree with the submission for the appellant that when it came to its task under s 36(2B)(a) of the Migration Act the IAA was required to consider whether it was reasonable in all of the circumstances for the appellant not to resume the petrol selling business. The IAA effectively avoided having to answer this question by failing to consider that the petrol selling business required travel to and from Herat. Had the IAA considered this aspect of the appellant’s claims as it was required to do it may have come to a different view on the overall issue of the reasonableness of relocation to Kabul. In all of the circumstances I am unable to conclude that it was inevitable either that the IAA would have made the same findings it did or that it necessarily would have relied on those findings in discharging its task under s 36(2B)(a) of the Migration Act.
For these reasons I consider that the appeal should be allowed, and consequential orders made accordingly.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 29 November 2019
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