CPR15 v Minister for Immigration
[2019] FCCA 2810
•3 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPR15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2810 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – whether failure to consider claims of persecution – whether failure to consider or properly take into account country information – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), ss.36, 46, 46A, 65, 195A, 476, 499 Migration Regulations 1994 (Cth), sch.2, cl.866.221(2) |
| Cases cited: AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 SZQZD v Minister for Immigration & Anor (No.2) [2013] FCCA 1912 SZTQP & Ors v Minister for Immigration & Border Protection & Anor [2015] FCAFC 121; (2015) 232 FCR 452 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 |
| Applicant: | CPR15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 563 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 November 2016 |
| Date of Last Submission: | 22 November 2016 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 3 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr D Blades |
| Solicitors for the Applicant: | Putt Legal |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
That a writ of certiorari issue quashing the decision of the second respondent made on 4 November 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 28 February 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 563 of 2015
| CPR15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHOP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
By an amended Judicial Review Application filed on 17 August 2016 (“Amended Judicial Review Application”) the applicant set out three grounds of review, each of which is set out separately hereunder.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Court Book (“CB”) of materials filed by the Minister, which includes a copy of the Tribunal Decision at CB 271-289;
b)the Judicial Review Application filed 3 December 2015 and the Amended Judicial review Application filed 17 August 2016;
c)affidavits of Daniela Annemarie Ino ( a law graduate) sworn 28 April 2016 annexing a copy of the transcript of the Tribunal hearing (“Tribunal Transcript”); Yovundhi Narmada Jayasekera (a lawyer) sworn 16 August 2016 annexing certain country information; and Linda Anne Salsano (a Law Clerk) sworn 11 October 2016 annexing further country information;
d)an outline of submissions filed by the applicant on 11 October 2016;
e)an outline of submissions filed by the Minister on 1 November 2016; and
f)the transcript of the hearing before the Court on 22 November 2016.
No affidavits were sought to be tendered by the applicants. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
Procedural history
The applicant, an Afghani citizen of Hazara Shia ethnicity, was born in Tarin Kot, Uruzgan Province, Afghanistan. His date of birth has been recorded as 31 December 1993: CB 4, 8, 44, 119 and 273.
In 1997 the applicant and his family left Afghanistan and moved to Quetta, Pakistan due to Taliban persecution: CB 8 and 227.
On or around February 2012 the applicant arranged to leave Pakistan and arrived in Australia by boat, codenamed “Marama”, on or around 27 June 2012: CB 9 and 178.
On 25 July 2012, an officer of the Department interviewed the applicant and concluded that the applicant was over the age of 18: CB 88-91.
On 7 November 2012 the Minister granted the applicant a Subclass 050 Bridging (General) visa and exercised his power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection Visa: CB 3-4.
On 10 December 2012 the applicant lodged an application for a Protection Visa: CB 13-39, 110, 112 and 119.
The applicant gave a statement of his Protection Visa claims in a statutory declaration dated 24 November 2012: CB 8-10. He also gave some documents to the Department as evidence of the death of his uncle: CB 82-86 and CB 273, footnote 4.
On 28 May 2013 the Delegate interviewed the applicant in connection with his Protection Visa claims: CB 112.
On 13 September 2013, a migration agent acting for the applicant, Ms Leanne Hill, (“Agent”) lodged a submission concerning the applicant’s Protection Visa claims with the Department: CB 119-131. Attached to the submission was a report from a known expert on Afghanistan and the Hazara Shia minority, Professor William Maley. The the submission highlighted some of the Professor’s key opinions.
The Agent highlighted the UNHCR Eligibility Guidelines for assessing the International Protection Needs of Asylum-seekers from Afghanistan: CB 121. The Agent also highlighted: CB 121-122:
a)a recent study of returnees to Afghanistan which emphasised how difficult reintegration can be even if people do have associates in the region to which they are returned: Liza Schuster and Nassim Majidi, ‘What happens post-deportation? The experience of deported Afghans’, Migration Studies, vol.1, no.2, 2013, pp.1-19; and
b)a recent study emphasising the centrality of relationships to livelihoods in rural Afghanistan, and the equal application of those points to urban areas: Paula Kantor and Adam Pain, Securing Life and Livelihoods in Afghanistan: The role of Social Relationships (Kabul: Afghanistan Research and Evaluation Unit, December 2010) which emphasised that:
The mere fact that there may be people of similar ethnic background living in a potential relocation destination does not overcome this problem, since ethnic identities do not in and of themselves give rise to the ties of personal affinity and reciprocity that arise from family connections. (Indeed, one mistake that observers – even Afghan observers – on occasion make is to underestimate the degree of differentiation amongst groups such as the Hazaras, including distinctions between elite and non-elite figures, distinctions based on district of origin and tribe, and distinctions based on values and ideology.) An Hazara who is returned to Kabul without social connections is likely to end up destitute, or be exposed to gross exploitation or criminal predation.
On 20 February 2014 the Delegate refused to grant the Protection Visa on the basis that the applicant did not satisfy s.36(2) of the Migration Act and cl.866.221(2) of sch. 2 to the Migration Regulations 1994 (Cth): CB 166-169 and 177-194.
The applicant lodged an application for review of the Delegate’s Decision with the Tribunal on 28 February 2014: CB 199-200.
The applicant was invited to appear at the Tribunal Hearing held on 8 September 2015: CB 212-215.
The Agent provided the Tribunal with submissions supporting the applicant’s claim on 31 August 2015: CB 224 and 227-247.
On 8 September 2015 the applicant attended the Tribunal Hearing: CB 248. The Agent provided the Tribunal with a post-hearing submission on 29 September 2015: CB 252-261. (Note: the first page of this submission is missing from the Court Book.)
On 7 October 2015, the Tribunal sent the Agent DFAT thematic reports for comment: CB 262. The Agent replied that she had read the reports and had made reference to them in the applicant’s last submission sent to the Tribunal: CB 263.
On 4 November 2015 the Tribunal affirmed the Delegate’s Decision because it was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention: CB 271-289.
Tribunal Decision
In the Tribunal Decision the Tribunal determined that:
a)the Tribunal was satisfied that the applicant is a citizen of Afghanistan and that he is not a Pakistani citizen: Tribunal Decision at [1] and [10];
b)the Tribunal noted at [6] that in accordance with Ministerial Direction No. 56 made under s.499 of the Migration Act, the Tribunal was required to take into account the PAM 3 Guidelines prepared by the Department, and any country information assessment prepared by the Department of Foreign Affairs and Trade ("DFAT") expressly for protection status determination purposes, to the extent that they are relevant to the Delegate’s Decision;
c)the Tribunal considered a wide range of country information at [11]-[28]. Based on this country information the Tribunal found at [29] that there is a real chance that the applicant will suffer serious harm that is systematic and discriminatory by reason of his Hazara ethnicity if he returns to his native area in Tarin Kot, Uruzgan. The harm identified by the Tribunal was that there was a very strong likelihood that the applicant would have to seek employment and accommodation from other ethnic groups, and in that process suffer discrimination which threatened his ability to subsist;
d)the Tribunal also found, based on country information it had discussed at [11 ]-[28], that the risk of the applicant suffering serious harm in Kabul is remote (at [30]). The Tribunal further found at [30] that the insurgent attacks in Kabul are aimed at people associated with the Afghan government, its institutions, international forces and international institutions or groups, and that the applicant is not such a person. The Tribunal acknowledged that there was a risk that the applicant may suffer serious harm as a civilian casualty, but the number of casualties needs to be considered in the context of the overall population in Afghanistan ([30]). The Tribunal further found that ethnic and sectarian based violence is rare in Kabul, and that as there is a sizeable Hazara and Shia population in Kabul, the risk of the applicant suffering discrimination that prevents him from finding accommodation and employment and that amounts to serious harm is remote ([31]);
e)the Tribunal further found, based on country information, that the risk of the applicant suffering serious harm because he sought asylum in Australia, and therefore had spent time in a Western country, is remote ([32]). The Tribunal considered that if it was truly the case that Hazara returnees were targeted on return to Afghanistan for spending time in Western countries this would be widely reported in available country information, but the Tribunal considered that it was not (at [32]);
f)the Tribunal found that it was reasonable for the applicant to relocate to Kabul. The Tribunal acknowledged - at [35] - that the applicant had never been there before and had no family there, and that there were challenges in Kabul in providing adequate services in the face of its rapid population growth, and the high competition for accommodation and employment ([35]);
g)the Tribunal was satisfied that the applicant's lack of family in Afghanistan would be less important in an urban area, that there was a large Hazara population in Kabul that the applicant could seek to integrate into, including finding work and accommodation, and that he would be well-placed to succeed as a young man of working age with work experience in Australia and Pakistan ([36]);
h)the Tribunal also assessed the impact on the applicant of living in Kabul in terms of the effect on him of living in a city in which insurgent attacks take place, where the government is fighting an insurgency in other parts of the country, where sectarian and ethnic violence is infrequent, where ordinary crime takes place, as well as the challenges discussed earlier which are posed by the rapid growth in the population (at [37]). The Tribunal concluded that even taking all of those factors into account cumulatively, relocation to Kabul was still reasonable for the applicant (at [37]);
i)the Tribunal then referred to the country information and inferences which it had drawn from the available country information, which it put to the applicant at the Tribunal Hearing (at [38]-[48]). The Tribunal concluded at [49] that neither the applicant nor his Agent had persuaded the Tribunal to depart from the inferences which it had drawn from the country information, and it therefore found that those inferences were correct and that there was not a real chance that the applicant would suffer serious harm in Afghanistan, and accordingly that he did not have a well-founded fear of persecution based on any Convention ground;
j)the Tribunal then dealt with the issue of complementary protection, and found that for the same reasons that there was a real chance that he would suffer serious harm in his native area in Uruzgan, there was also a real risk that he will suffer significant harm in that area. The Tribunal also found, for the same reasons that there was not a real chance that the applicant would suffer serious harm in Kabul and it was reasonable to expect him to relocate there, that there was not a real risk that he would suffer significant harm in Kabul and that it would be reasonable for him to relocate there (at [50]). The Tribunal therefore concluded that there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan, and accordingly there was not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Afghanistan, there was a real risk that he would suffer significant harm (at [50]); and
k)as a result of its findings, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, and that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act, and was also not satisfied that he was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act (at [51] and [52]). The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
Ground 1
Ground 1 is as follows:
Ground 1
The Tribunal made a jurisdictional error by failing to consider the applicant's claim that he fears persecution from the Taliban, informants and criminal elements by reason of his accent.
Particulars
a. It was part of the applicant's claim that he feared persecution from the Taliban, informants and criminal elements because of his accent (CB 9, 185, 246, 255).
b. The applicant has lived outside Afghanistan since the age of 4, and he has not returned since (CB 227). As a result:
(i) The applicant has developed a distinguishable Urdu accent and is unable to speak pure Hazaragi and Dari (the main language spoken by Hazara in Kabul) (Transcript p 9, [25]);
(ii) The applicant's accent will expose him as someone who is from Pakistan and lead to him being considered and identified as an outsider, making him vulnerable to exploitation (CB 246, 255).
c. The Tribunal stated that after it asked the applicant whether he spoke his language with an accent, the applicant said that he did not (CB 286, [43]).
d. The applicant did not tell the Tribunal that he did not speak with an accent. Rather, he told the Tribunal:
“Actually my language Hazaragi but I know also Urdu mixed with my language as well and there are some other languages in Pakistan that they're also mixed with my language and also some when I talk in Hazaragi I cannot speak pure Hazaragi and about Dari I am not good in Dari .... Not good in Dari, yeah.” Transcript p 9)
e. The Tribunal incorrectly interpreted the applicant's response to its question of whether he has an accent and as a consequence it did not give real consideration to the consequences of the applicant having an accent.
f. Further, the Tribunal:
(i) noted DFAT Country Information stating “returnees from western countries faced a similar level of risk as [people associated with foreign countries] but that risk would be reduced if those returnees maintained a low profile by taking steps to conceal their association with a Western Country from which they have returned.” (Underlining added) (CB 280, [22]).
(ii) found that “In Kabul the applicant will not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government, or the international community, just for having spent time in Australia.” (CB 284, [33]).
g. The Tribunal also failed to take into account that the applicant would not be able to conceal his accent, thus putting him at risk of being associated with foreign countries.
Applicant’s submissions
The applicant’s submissions were as follows:
a)failure by a Tribunal to make a finding on a substantial, clearly articulated, argument relying upon established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ (Hayne J agreeing); referred to with approval in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [55] per Black CJ, French and Selway JJ;
b)the applicant resided in Quetta, Pakistan since the age of 4: CB 94 and 227, and speaks the Hazaragi and Urdu languages: CB 96. Through living in Pakistan he claimed that he developed a distinguishable Urdu accent while also being unable to speak pure Hazaragi and Dari (the main languages spoken by Hazara in Kabul): Tribunal Transcript, p.9;
c)for that reason the applicant made several claims in regards to his accent, including:
i)that he will be a target of the Taliban and other anti-Shia groups because his accent will identify him as a foreigner, and that he has been returned from a Western Country: CB 9-10; and
ii)his accent will identify him as someone who is from Pakistan and lead to him being considered and identified as an outsider and vulnerable to exploitation: CB 246; and
iii)he would be vulnerable to informants and criminal elements because he is a returnee and because of his accent and mannerisms: CB 255;
d)at the Tribunal Hearing the Tribunal inquired as to whether the applicant had an accent as is evident from the extract below: Transcript, p 9):
Tribunal: And do you speak your language with an accent?
Applicant: What accent?
Tribunal: Well, you made a written statement when you applied for protection. You made a written statement when you applied for protection and in the statement you said if you go back to Afghanistan the people there will think you’re a foreigner because of your accent. What is that accent?
Applicant: Actually my language Hazaragi but I know also Urdu mixed with my language as well and there are some other languages in Pakistan and they’re also mixed with my language and also some when I talk in Hazaragi I cannot speak pure Hazaragi and and about Dari I am not good in Dari. Not good in Dari, yeah.
e)it is clear from the Tribunal Decision that, at the Tribunal Hearing, the Tribunal incorrectly interpreted the applicant as stating that he does not have an accent, when in fact he was expressing that he does have an accent;
f)the Tribunal stated (at [43):
At the hearing the Tribunal asked the applicant if he spoke his language with an accent and he said he did not. (Emphasis added) He said that he tended to mix his own language, Hazaragi, with words from Urdu.
g)the applicant never expressly denied that he has an accent. Instead, by stating that his Hazaragi is “mixed” with Urdu and other Pakistani languages he attempted to explain that he does have an accent;
h)as such, the Tribunal proceeded on the basis that the applicant, despite his written claims, had admitted he had no accent, and submitted that the Tribunal did not give real consideration to the potential consequences of the applicant’s accent;
i)the Tribunal made passing reference to the applicant’s claim when it stated at [48]:
The representative also claimed that the applicant’s accent would show that he has been in Pakistan and that this in some way makes him vulnerable to criminals or others. The Tribunal finds that the representative’s claims in this respect are without foundation as no country information was submitted to support them. (Emphasis added)
j)the above statement does not demonstrate consideration of the issue of the applicant’s accent. Rather, it merely states the claim and then describes the claim as being “without foundation” simply because no country information was submitted to support it. It is submitted that the Tribunal did not pursue the issue further because it thought the applicant had admitted that he did not have an accent;
k)there was in fact country information submitted by the applicant that addressed the difficulty the applicant would face by reason of his accent. The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, at p 74, state that in assessing the reasonableness of relocation, particular attention must be given to:
(iv) the presence of livelihoods opportunities, including access to land for Afghans originating from rural areas;
l)at footnote 467, p 74, the UNHCR Eligibility Guidelines state:
Afghans originating from rural areas, with few marketable professional skills beyond agriculture and animal husbandry, may have difficulty reintegrating elsewhere. They are likely to have few or no savings and no property (because property has been destroyed, looted or left behind during displacement), no social support networks in the places of relocation and perhaps even communications difficulties, due to language or dialect limitations. (Emphasis added)
m)in addition, the article “What happens post-deportation? The experience of deported Afghans: by Liza Schuster and Nassim Majidi, referred to in the Agent’s first submission: CB 121-122, contained the following information (p 11):
A focus group with young men deported from the UK in Kabul highlighted a common experience: having fingers pointed at them, and being called ‘the deportee’ (also noted by Drotbohm in relation to those deported to Haiti (2011)). In a country where neighbours know everything about each other and there is very little room for privacy it is difficult to hide a deportation. In Afghanistan, Majidi (2009) has found similar responses to those found by Peutz in Somaliland: ‘those who are returned to Somaliland are potential spoilers of the true culture at home’ (2006: 227). Life in the West is sometimes seen by community members as having ‘contaminated’ the teenagers and young adults who left for the UK at a young age and returned with visible and invisible signs of their cultural change (clothing, behaviour, accent etc.). Life in the UK is perceived as having had a negative impact on their development. In the case of one young man interviewed in 2009 and again in 2011, from Paghman district in Kabul province, his return home led to clashes arising from his changed perspectives:
They all bother me because I went to the UK. They say I lost my culture, became a kafir . . . all sorts of insults. Another deportee – Habib – returned and was killed in our village last year. I left because I no longer felt safe. But now I have no employ- ment, no stable income, no skills, no future and no family by my side. (Najib, 22)
(Emphasis added)
n)further, the above statement of the Tribunal does not make specific reference to the applicant’s fear of persecution from the Taliban by reason of his accent. This further demonstrates that the Tribunal did not consider this aspect of the applicant’s claim for protection;
o)the Tribunal also referred to an aspect of the applicant’s accent claim when it stated (at [42]):
The applicant claimed to the department that he will suffer serious harm in Afghanistan because he has spent time in a Western country. He said that because of his speech and accent, Afghans will think he is a foreigner and learn he has been in a Western country (emphasis added).
p)the Tribunal did not proceed to make any findings in relation to the claim. In fact, the above statement is followed by the Tribunal’s finding (outlined at paragraph 22 of these submissions) that the applicant said he did not have an accent. This suggests the Tribunal made this statement in response to the claim and did not see it necessary to delve further into the issue;
q)further, the Tribunal’s statement above does not address the applicant’s claim that he fears persecution specifically from the Taliban by reason of his accent. Instead, the Tribunal generally refers to what ordinary “Afghans” may perceive about the applicant;
r)in SZQZD v Minister for Immigration & Anor (No.2) [2013] FCCA 1912 (“SZQZD”) the applicant claimed that his Urdu accent would lead the Taliban to think he had been in another country, assume he was a non-believer, and therefore put him at risk of harm. Similarly to the applicant in the present matter, the applicant in SZQZD:
i)was an Afghan of Hazara ethnicity and Shi Muslim religion; and
ii)moved with his family to Quetta, Pakistan at a young age in which he developed an Urdu accent.
s)in SZQZD finding that this claim had not been considered by the Independent Merits Reviewer, the Court stated at [26] per Judge Riley:
The submission made by the applicant’s adviser may have put a certain gloss on the applicant’s claim, or emphasised a certain facet of it. However, the applicant’s claim as he stated it still had to be addressed. The reviewer did not do so (emphasis added). It is not for the court on review to consider the merits of a claim.
t)similarly to SZQZD, the Tribunal in this case failed to specifically address the applicant’s accent claim;
u)finally, one aspect of the applicant’s claim was that his accent would draw attention and identify him as a foreigner. This claim was overlooked by the Tribunal when it noted (at [22]) DFAT Country Information stating:
Returnees from western countries faced a similar level of risk as [people associated with foreign countries] but that risk would be reduced if those returnees maintained a low profile by taking steps to conceal their association with a Western Country from which they returned (emphasis added).
v)the Tribunal then went on to state (at [33]):
In Kabul the Applicant will not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government, or the international community, just for having spent time in Australia. (Emphasis added)
w)it is evident that the Tribunal did not consider that the applicant’s accent would be difficult, if not impossible, to consistently conceal. It is submitted that this was not considered because the Tribunal was under the mistaken impression that the applicant had stated he did not have an accent.
Minister’s submissions
The Minister’s submissions were as follows:
a)the Minister accepts that it is incumbent on the Tribunal to consider an applicant's claims and their integers, to the extent that not to do so would involve jurisdictional error: SZTQP & Ors v Minister for Immigration & Border Protection & Anor [2015] FCAFC 121; (2015) 232 FCR 452 at [52] per Nicholas, Robertson and Griffiths JJ;
b)particular b. to ground 1 refers to the applicant having lived outside Afghanistan since the age of 4 (in Pakistan) until he came to Australia in 2012, and that as a result he has developed a distinguishable Urdu accent, and that this accent will expose him as someone who is from Pakistan and lead to him being considered and identified as an outsider, making him vulnerable to exploitation;
c)particulars c., d. and e. to ground 1 further allege that the Tribunal had stated (at [43]) that he did ask the applicant whether spoke his language with an accent, and that the applicant had said that he did not, but that the Tribunal had incorrectly interpreted the applicant's response to its question, and as consequence did not give real consideration to the consequences of the applicant having an accent;
d)particulars f. and g. to ground 1 further refer to country information noted by the Tribunal, that the Tribunal found that in Kabul the applicant would not conduct himself in a way that would bring him to the attention of anti-government groups just for having spent time in Australia, and that the Tribunal also failed to take into account that the applicant would not be able to conceal his accent, thus putting him at risk of being associated with foreign countries;
e)in his statutory declaration accompanying his protection visa application the applicant's claim regarding his accent if he was returned to Afghanistan was that ''They will also think that I am a foreigner because of my speech/accent and will know that I have been returned from a Western country. I will therefore be a target of the Taliban and other anti-Shia groups because of my imputed political opinion": CB 9-10. The applicant's claim therefore was that he will face persecution from the Taliban (and other anti-Shia Groups) because of his accent (developed as a result of having lived in Pakistan for most of his life) because as a result of his accent the Taliban and others will consider him a foreigner who has returned from a Western country, and they will target him because of his imputed political opinion (attributed to him as a result of him returning from a Western country);
f)at his interview with the Delegate the applicant was asked why he could not return to Afghanistan, and he also referred to his speech being different because he had lived in Pakistan for so long (and also that his style of clothing he wore in Pakistan was different): CB 185. The Delegate then advised that people returned to Afghanistan from all around the world each day and that many return from Pakistan and Iran. The applicant then stated that these were people who wanted to go to Afghanistan and that anyone returning from Australia would be considered an infidel: CB 185. A little later he further stated that "if he chats they will know (because of his accent) he was here in Australia and then they will kill him.": CB 186;
g)again, these claims made by the applicant to the Delegate evidence that the applicant was claiming that, because of his accent as a result of having lived in Pakistan for a long period of time, if he is returned to Afghanistan it will be known that he was in Australia and would be killed as a result. Apart from his accent as a result of living in Pakistan, no other basis has been put forward by the applicant as to why the Taliban and other groups would know that he has returned from a Western country;
h)the Minister accepts that the Tribunal made a factual error when it stated at [43] that at the Tribunal Hearing it asked the applicant if he spoke his language with an accent, and that the applicant "said he did not." However, factual error by itself does not amount to jurisdictional error;
i)further, notwithstanding that finding by the Tribunal, the Tribunal nevertheless did consider the applicant's claim about his accent when it concluded at [43] that it was "not persuaded that any of the factors mentioned by the applicant will enable Afghans in Kabul to know that he has spent time in Australia";
j)even assuming that the applicant's accent had changed as a result of living for a long period of time in Pakistan, it is hard to see how that accent could then lead Afghans in Kabul to know that the applicant had spent time in Australia. As the Delegate noted, many persons who have lived in Pakistan had returned to Afghanistan. So even if the Tribunal did not take into account that the applicant's accent had changed as a result of having lived a long time in Pakistan, that could not have affected the Tribunal's finding that the applicant would not suffer serious harm or significant harm as a result of having returned from a Western country, and any such factual error therefore did not amount to jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] and [84] per McHugh, Gummow and Hayne JJ;
k)further, and in any event, there is an additional basis for concluding that any factual error made by the Tribunal in finding that the applicant said at the Tribunal hearing that he did not have an accent, did not result in any jurisdictional error. After stating at [43] that it was not persuaded that any of the factors mentioned by the applicant will enable Afghans in Kabul to know that he has spent time in Australia, the Tribunal also stated:
Further, for the reasons given above, the Tribunal infers that the risk of the applicant suffering serious harm because he has been in Australia is remote.
l)the reference to the "reasons given above" is a reference to [32] and [34] of the Tribunal Decision dealing with whether there is a risk of the applicant suffering serious harm because he sought asylum in Australia (and therefore was returning from a Western country). The Tribunal concluded at [32] that the risk of the applicant suffering serious harm on this ground was remote, as if it was truly the case that Hazara Afghan returnees were targeted on return to Afghanistan for spending time in Western countries, this would be reported in available country information, but the Tribunal considers that it is not;
m)accordingly, any error by the Tribunal in finding that the applicant had said at the Tribunal hearing that he did not have an accent did not affect the exercise of the Tribunal's decision-making power, and therefore did not amount to jurisdictional error: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ. The Tribunal was satisfied that even if it was known that the applicant had spent time in Australia, as a result of his accent or for any other reason, the risk of the applicant suffering serious harm as a result was remote;
n)particular b.(ii) of ground 1 states that the applicant's accent will expose him as someone who is from Pakistan and lead to him being considered and identified as an outsider, making his vulnerable to exploitation (referring to the applicant's submission at CB 246 and 255);
o)paragraph 7.33 of the submissions made on behalf of the applicant: CB 246, stated that:
His accent will identify him as someone who is from Pakistan and lead to him being considered and identified as an outsider and vulnerable to exploitation.
p)the further submissions provided on behalf of the applicant submitted: CB 255 - 5th dot point, that the applicant "would be vulnerable to informants and criminal elements because he is a returnee and because of his accent";
q)the Tribunal did consider these further claims made on behalf of the applicant in relation to his accent resulting from him having lived in Pakistan for a long period of time. At [48] the Tribunal stated:
The representative also claimed that the applicant's accent would show that he has been in Pakistan and that this in some way makes him vulnerable to criminals or other. The Tribunal finds that the representative's claims in this respect are without foundation as no country information was submitted to support them.
r)the Minister submits that for the reasons set out above, ground 1 of the Amended Judicial Review Application is not made out.
Consideration
Ordinarily a finding of fact, such as the determination of whether a person has an accent or not, is a matter for the Tribunal. In this case, however, it is conceded by the Minister that the Tribunal made an error of fact in finding that the applicant did not have an accent. It follows therefore that the applicant did have an accent, and to the extent that findings were made contingent upon the applicant having no accent, those findings had no rational or probative basis: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. In any event, the applicant claimed:
a)to have an identifiable Pakistani accent from his tears living in Pakistan; and
b)that it was identifiable from his speech that he had spent time in Australia.
The Minister is correct to say that the fact that the Tribunal finding that the applicant had spent time in Australia was not, on the evidence, sufficient to establish a serious or significant risk of harm for a Convention reason on the applicant’s return to Afghanistan as many Afghanis have returned home from Australia (and other Western countries) in recent years without incident. The Court notes that that finding is a specific finding by the Tribunal, limited to the risk associated with the applicant having returned from Australia. The Court further notes that the Tribunal did not consider, presumably because it incorrectly found that the applicant had no accent, the applicant’s claim to have an identifiable accent from his time in Pakistani which was not Hazaragi, not Dari, nor generally seemingly Afghan, with the consequence that he might be identified as non-Hazaragi, non-Dari, or not even Afghan, and as a consequence be exposed to a serious risk of harm from various ethnic groups in Afghanistan. The Delegate dealt with this claim. The Tribunal should have but did not. It was a specific claim, and as it was not dealt with, the Tribunal fell into jurisdictional error: Dranichnikov at [24]-[25] per Gummow and Hayne JJ.
It follows from the above that ground 1 has been made out and establishes jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 is as follows:
Ground 2
The Tribunal made a jurisdictional error by failing to consider DFAT country information that it was required to take into account under Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth) and failing to apply that information to the applicant's circumstances.
Particulars
a. The Tribunal quoted DFAT country information (referenced at footnote 89, CB 285) as follows:
“Country information indicates that family, tribal or ethnic links are important.” (CB 285, [36)).
b. However, the Tribunal also inferred that “this will be more acute in rural areas as opposed to a large city like Kabul.” (CB 285, [36)).
c. The applicant's agent submitted: “The applicant's personal circumstances of being a young Hazara Shia man who has lived outside of Afghanistan the majority of his life need to be taken into account in tandem with the fact that there is a complete absence of family members or another close social links in the proposed alternative area of Kabul. Although the applicant has skills as a carpet maker and butcher, his lack of a support network will put him at great risk of not being at an adequate level of subsistence.” (CB 243, [7.19])
d. The Tribunal failed to consider relevant parts of DFAT Thematic Report on Conditions in Kabul dated 18 September 2015, in particular:
(i) paragraph 2.14 which states: “Many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure. Many work as poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or become street sellers. Interviewees in Kabul for the preparation of this report often cited a lack of job opportunities as a key concern, more so even than the security situation.”
(ii) paragraph 2.28 which states: “Traditional extended family and community structures are the main protection and coping mechanisms for people in Afghanistan, who rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of subsistence.”
Applicant’s submissions
The applicant’s submissions were as follows:
a)the Tribunal acknowledged: CB 272-273 at [6], that it was required to take into account any country information assessment prepared by the Department expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration;
b)accordingly: CB 272-273 at [6], the Tribunal stated it had taken account of DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014, DFAT Country Information Report Afghanistan 18 September 2015 and DFAT Thematic Report Conditions in Kabul 18 September 2015;
c)the Agent made the claim on behalf of the applicant that as a young Hazara Shia male who has lived outside of Afghanistan the majority of his life, the applicant’s personal circumstances in that regard needed to be taken into account in tandem with the fact that there is a complete absence of family members or other close social links in the proposed relocation area of Kabul;
d)there was relevant country information on that claim before the Tribunal in the DFAT reports as particularised in Ground 2, subparagraphs d.(i) and (ii). (Note: the quotation from the DFAT report in subparagraph (ii) is contained in paragraph 3.8 of the DFAT Thematic Report “Conditions in Kabul” dated 18 September 2012, not paragraph 2.28.);
e)in deciding that it was reasonable for the applicant to relocate to Kabul: CB 284 at [35], the Tribunal acknowledged that the applicant has never been to that city, has no family there and because the population of the city has grown so rapidly it faces challenges in terms of providing adequate services; and
f)the Tribunal concluded, however, that “the applicant will have a population of between 1.7 million to two million Hazaras among whom he can seek to integrate into living in Kabul including finding work and accommodation.” In reaching this conclusion, the Tribunal failed to have regard to the relevant DFAT information emphasising the importance of “a network of family contacts”, and “traditional extended family and community structures”. In addition to failing to have regard to the paragraphs referenced above, and as discussed further in ground 3, the Tribunal failed to have regard to paragraph 3.13 which provides:
3.13 Internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. Unaccompanied women and children are least likely to be able to successfully relocate to urban areas, particularly if these networks are lacking.
Minister’s submissions
The Minister’s submissions were as follows:
a)there is no substance to this ground of review. The Tribunal clearly had regard to DFAT information that it considered relevant in considering the applicant's claims: see Tribunal Decision at [11]-[43] and the various footnote references to DFAT country information;
b)the Tribunal is only required to take into account a DFAT country information assessment to the extent that that assessment is "relevant" in making their decision": SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 (“SZTMD”) at [8] and [16] per Perram J;
c)further, it was for the Tribunal to form an opinion as to what country information was relevant under clause 3 of Ministerial Direction No. 56 and what was not, and the clause does not require the existence of a jurisdictional fact: SZTMD at [20] per Perram J; and
d)there was therefore no jurisdictional error by the Tribunal in forming its opinion as to what DFAT country information was relevant, and ground 2 is not made out.
Consideration
The Tribunal referred to the DFAT country information reports in relation to which the applicant now claims that there were specific parts or paragraphs not considered contrary to the Tribunal’s obligation to take into account the relevant Ministerial guidelines. Having expressly referred to the Ministerial guidelines and having indicated that they were taken into account, and having referred to each of the DFAT country information reports, it can be inferred on a fair reading of the the Tribunal Decision that the Tribunal took into accounts the DFAT country information reports: AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 at [46] per Barker J (citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 (“Wu Shan Liang”). At the very least the fact that the evidence or information from those very detailed DFAT country information reports is not expressly referred to in the Tribunal Decision does not, however, mean that the Tribunal did not consider the evidence or information at all, or that it failed to actively engage with it: Yusuf at [69] per McHugh, Gummow and Hayne JJ; SZTMD at [19] per Perram J. In this case the length and nature of the Tribunal’s engagement with the country information: at [11]-[43] of the Tribunal Decision, supports an inference that the Tribunal did take into account the relevant DFAT country information reports.
In the above circumstances, ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
Ground 3
The Tribunal failed to properly take into account DFAT country information in accordance with Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal concluded: “... country information discussed above also indicates that young men of working age are more likely to successfully integrate into life in the city and this applicant has varied employment experience in two countries (CB 287, [47]).
b. DFAT Thematic Report Conditions in Kabul, dated 18 September 2015, states “internal relocation to urban areas is generally more successful for single men of working age provided they are able to make use of family or tribal networks.” (underlining added) (3.13).
c. The Tribunal did not consider the above underlined proviso in connection with the applicant's claim that he would be returning to Kabul without any having family members or other close social links there. (CB 256, 258, 260)
d. Further, DFAT Country Information Report Afghanistan 18 September 2015 states:
“While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community.” (5.20). (Underlining added)
e. The Tribunal, in considering the applicant's claim as a single man of working age faced with the prospect of removal to Kabul, failed to consider the impact a lack of family networks would have on the applicant's attempt to relocate to Kabul.
Applicant’s submissions
The applicant’s submissions were as follows:
a)in accordance with Ministerial Direction No. 56 the Tribunal took into account three DFAT country information reports when considering the applicant’s claim for a protection visa. Those reports were:
i)DFAT Thematic Report Hazaras in Afghanistan and Pakistan 26 March 2014;
ii)DFAT Country Information Report Afghanistan 18 September 2015; and
iii)DFAT Thematic Report Conditions in Kabul 18 September 2015.
b)at 5.20 the DFAT Country Information Report Afghanistan 18 September 2015 states:
While men of working age are more likely to be able to return and reintegrate successfully than unaccompanied women and children, the lack of family networks for single men can also impact on their ability to reintegrate into Afghan community. (Emphasis added)
c)similarly, at 3.13, the DFAT Thematic Report Conditions in Kabul 18 September 2015 states:
Internal relocation to urban areas is generally more successful for single men of working age, provided they are able to make use of family or tribal networks. (Emphasis added)
d)thus, both reports indicate that single, young men of working age are more likely to successfully integrate into society. However, that success is highly dependent on whether that individual has relevant family or tribal networks. The importance of these networks is further reinforced in the following paragraphs:
· Many ... new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure- many work as relatively poorly paid day labourers who seek occasional work as it becomes available. Others are required to beg or work as street-sellers (Conditions in Kabul, 2.14).
· Traditional extended family and tribal community structures are the main protection and coping mechanism in Afghan society. Afghans rely on these networks for their safety and economic survival, including access to accommodation and an adequate level of sustenance (Conditions in Kabul, 3.8).
· In practice, ethnic, tribal and family affiliations are important factors in almost every aspect of life in Afghanistan. For the majority of Afghans, including those in major cities such as Kabul but especially in rural areas, kinship is central to identity and acceptance in the community, including for finding shelter and employment (Country Information Report Afghanistan, 3.2).
· Ethnic, tribal or family connections will often be more important than merit in employment decisions for both government and private sector position. Access to these connections is crucial in a weak, and deteriorating, economic environment to secure or maintain opportunities for personal livelihood (Country Information Report Afghanistan, 3.8).
e)the Tribunal in its decision record placed great emphasis on the fact that the Applicant is a “young single man of working age”. For example, it states (at [28]):
Relocation (and return) to Kabul is generally more successful for single men of working age (as opposed to unaccompanied women and children without the assistance of family or tribal networks (emphasis added). It is more likely to be successful where the person concerned has established (family or tribal) networks that can assist with the provision of basic necessities.
f)further, the Tribunal states (at [36]):
As a young man of working age he will be better placed to succeed in that respect than others (emphasis added).
g)finally, at [47] the Tribunal stated:
The Tribunal acknowledges the difficult conditions encountered by the population in Kabul and that fact that the applicant has never been there, does not have family there and does not own property there. However, country information discussed above also indicates that young men of working age are more likely to successfully integrate into life in the city and this applicant has varied employment experience in two countries (emphasis added).
h)the country information reports referred to above do indicate that single men of working age are more likely to successfully integrate into Afghan society. However, it is submitted that a general analysis of the content of these reports reveal that family and tribal networks are far more significant than the characteristic of being a single man of working age, to the extent that the success of such an individual is dependent on their family or tribal ties;
i)this is especially evident from DFAT Thematic Report Conditions in Kabul at 3.13 where it is explicitly stated that single men of working age are generally more successful internally relocating provided they are able to make use of family or tribal networks;
j)it is submitted that the Tribunal failed to recognise the nature of the above proviso and consequently overlooked that the success of a single man of working age reintegrating is reliant on his family or tribal networks; and
k)as such, it is submitted that the Tribunal failed to properly take into account DFAT country information in accordance with Ministerial Direction No. 56 and s.499 of the Migration Act.
Minister’s submissions
The Minister repeated his submissions in relation to Ground 2.
Consideration
The fact that ground 3 is predicated on an alleged failure by the Tribunal to “properly” take into account the DFAT country information it was said to be required to take into account immediately signals this as a ground which seeks to impugn the Tribunal Decision on the basis of impermissible merits review, contrary to longstanding principle: Wu Shan Liang. The weight to be given to the DFAT country information, which the Court has found was taken into account in accordance with the Ministerial guidelines: see [32]-[33] above, was ultimately a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. In the Court’s view, having taken into account the various DFAT country information reports, the Tribunal has given more weight to certain parts of the material from those reports with respect to the prospects of young single men in Kabul, as opposed to young single men with family and other connections, when arriving at its conclusions, which the Court was entitled to do.
In the circumstances ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that:
a)ground 1 of the Amended Judicial Review Application has been made out and establishes jurisdictional error in the Tribunal Decision; and
b)grounds 2 and 3 of the Amended Judicial Review Application have not been made out and do not establish jurisdictional error in the Tribunal Decision.
It follows from the Court’s conclusion with respect to ground 1 of the Amended Judicial Review Application that the applicant is entitled to appropriate prerogative relief.
The Court will hear the parties as to costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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