CQI16 v Minister for Immigration
[2018] FCCA 3178
•12 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQI16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3178 |
| Catchwords: MIGRATION – Visa – protection visa – whether Immigration Assessment Authority asked itself the wrong question – real chance of persecution – whether decision unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2)(a) & (aa) and 473DD(b) |
| Cases cited: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | CQI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 296 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 7 June 2017 |
| Date of Last Submission: | 7 June 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 12 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Clark |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the Respondents: | Mr P D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 296 of 2016
| CQI16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review against a decision of the second respondent (‘the Authority’) dated 19 August 2016 which affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Safe Haven Enterprise Visa (‘the visa’).
The applicant relies on his Amended Application filed on 19 December 2016. That Application identifies two grounds as follows:
“1.The decision of the IAA was affected by jurisdictional error in that it misconstrued and/or misapplied the applicable law or otherwise failed to ask itself the correct question.
1.1The IAA found at paragraph [39] on the basis of country information before it that there had been recent targeted attacks directed specifically against Hazara Shias in Kabul, with a specified intention of future attacks against the same group in future;
1.2The IAA referred to and apparently accepted country information indicating that such attacks are likely to occur again, while finding that the evidence did not support that the attacks were likely to become regular or sustained;
1.3The IAA asked itself the wrong question in that it treated as relevant and/or necessary to the concept of a real chance of serious harm / real risk of significant harm the question of whether there had been “a change in Kabul’s security situation” (at [39]) and whether there was an increased risk to an ordinary Shia Hazara living in Kabul” (at [40];
1.4In holding that there was not a real risk that the Applicant could be harmed by such an attack in future, the IAA misconstrued the applicable law or misapplied the law to the facts as found or otherwise failed to ask itself the correct question, in that the Applicant did, on the IAA’s findings and the country information which it accepted, face a real chance or real risk of being so harmed.
2.The decision of the IAA in exercising power under s36(2)(a) and s36(2)(aa) of the Migration Act 1958 was legally unreasonable.
2.1Implicit in the IAA’s conclusion was a finding that there was no reasonable possibility that the Applicant would suffer serious or significant harm in Kabul;
2.2the conclusion that the Applicant did not face a real chance of serious harm in Kabul (as a Shia Hazara) was not rationally open to the IAA on the basis of the materials before it, in particular the Afghanistan Analysts Network and HIS Jane’s Intelligence Weekly material (footnote 56 of the IAA decision) which the IAA accepted;
2.3The conclusion that the Applicant did not face a real risk of significant harm in Kabul (for the purposes of assessing complementary protection) was not rationally open to the IAA on the basis of the materials before it;
2.4The conclusion that the Applicant did not face a real chance of serious harm (or a real risk of significant harm) in Kabul was inconsistent with the IAA’s own factual findings as set out at 1.1 and 1.2 in Ground One above and in [38] to [39] of the decision.”
Background
I have paraphrased the summary below from the outlines of submissions filed by both the applicant and the first respondent.
The applicant is an Afghani citizen of Hazara ethnicity and a Shia Muslim. He has been in Australia since October 2012 having arrived here as an unauthorised maritime arrival. He previously lived in Ghazni province in the Jaghori District of Afghanistan.
He applied for a Safe Haven Enterprise (Class XE) subclass 790 visa in October 2015. He was represented by a Migration Agent at both the delegate stage and before the second respondent. He made claims for protection on the basis of:
a)A land dispute between his father and a corrupt official (whom I will not name for the purpose of these reasons).
b)His race and religion and as a Hazara and a Shia Muslim; and
c)An imputed political opinion as a result of being a returnee from the West.
It was the applicant’s position that he fears being returned to anywhere in Afghanistan and that relocation was not safe for him because of the deteriorating security situation in that country.
The Authority accepted that the applicant was an Afghani citizen. It accepted that there was a real chance that he would be persecuted as a Shia Hazara in Ghazni and on surrounding roads leading to Jaghori. It also accepted that there was a real chance of him being harmed as a returnee from the West if he were to return to Ghazni due to political opinions being imputed to him.
The evidence of the applicant as to the land dispute was accepted by the Authority and it concluded that if he returned to Jaghori he would suffer serious harm from the corrupt official and/or his family. It did not accept that harm related to all areas of Afghanistan. It found that the actions of the corrupt official were not politically motivated and they arose from a personal relationship. For that reason it was not satisfied that the harm faced by the applicant in Jaghori was one of the reasons identified under s.5J of the Migration Act 1958 (Cth) (‘the Act’). Accordingly, the Authority found that the applicant would be able to relocate elsewhere in Afghanistan, and in particular Kabul. The Authority accepted that country information indicated that it was possible for a person to be targeted in Kabul but it did not accept that the corrupt official would actively seek the applicant out because he had waited for over 10 years and had no intention of pursuing the land dispute on his return to Afghanistan.
The Authority gave lengthy consideration to the question of whether being a Hazara Shia with imputed Western political opinions, the applicant would be persecuted. It relied upon a variety of country information to determine that matter. The conclusion reached by the Authority was that the applicant was not engaged in activities likely to be targeted by insurgents and that he would not face a real chance of serious harm in Kabul. The Authority found that country information indicated that insurgent groups continue to target high profile groups and places in Kabul. It relied upon a Department of Foreign Affairs and Trade (‘DFAT’) Report from February 2016 to the effect that returnees were unlikely to be discriminated against or subject to violence on the basis of their ethnicity or religion. Whilst it concluded there were risks in travelling by road between Kabul and Hazaragat for a person even with a low profile, nonetheless the applicant would be able to travel to Kabul through the International Airport there. It concluded that the applicant did not meet the requirements of s.36(2)(a) of the Act, or the complementary protection criteria.
After the delegate’s decision, the applicant’s agent made a submission on 25 July 2016 which requested the Authority to consider the recent suicide bombing in Kabul which had occurred on 23 July 2016. He asked that this be considered in the context of the risk of harm to the applicant as a Hazara Shia in Kabul and the deteriorating security situation in that city. The Authority was satisfied that information relating to the July 2016 bombing in Kabul was “new information” which could not have been provided prior to the delegate’s decision, was significant enough to impact upon the consideration of the applicant’s claims, and for that reason there were exceptional circumstances that justified considering it.[1]
[1] Section 473DD(b).
With respect to the situation in Afghanistan as a whole, the Authority found[2] that there had in recent times been a “significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and the other anti-government elements” against Hazara Shias. The Authority accepted a DFAT Report which noted that there had been a recent increase of kidnapping and attacks against Hazara Shias, and for that reason the security situation for them remained fluid. The DFAT Report assessed that “no part of Afghanistan can be considered to be free of conflict related violence and in the current environment people from all ethnic groups are at risk of violence from anti-government groups, but no particular group is systematically targeted solely on the basis of their ethnicity.”[3] The Authority considered a range of media relating to the July 2016 attack for which responsibility had been claimed by ISIS.[4] The Authority accepted that there had, “been targeted attacks on Shias in Kabul in the past and the recent attack appears to have been directed specifically against Hazara Shias, with the expressed intention of possible further attacks”[5] It also accepted that a group known as Islamic State in Khorasan Province and/or ISIS “demonstrated the potential to undertake occasional further high profile attacks in Kabul against Shias despite having the limited influence”.[6]
[2] Court Book (‘CB’), p 373 at [27].
[3] Ibid.
[4] CB p 376 at [38].
[5] CB p 376 at [38].
[6] CB p 377 at [39].
With respect to the complimentary protection provisions, the Authority found that the security situation for Hazara Shias in Kabul did not differ to that of the general population.
Submissions
Submissions of the applicant
Counsel for the applicant made detailed written and oral submissions. She emphasised authority with respect to the phrase “well-founded fear of persecution” and in particular the case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs[7] where McHugh J held:
“Obviously a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well founded” for the purpose of the Convention Protocol.”[8]
[7] (1989) 169 CLR 379.
[8] Op cit at p 429.
With respect to the real chance test, counsel referred the Court to the decision of the High Court in the Minister for Immigration v Guo Wei Rong[9] and in particular to the following passage:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”[10]
[9] (1997) 191 CLR 559.
[10] Op cit at pp 575 - 576.
It was submitted, un-controversially, that in order for feared harm to be well-founded, there does not need to be systematic conduct in the sense of being sustained or regular, and further that it is not necessary for the likelihood of harm to be more likely than not.
The overarching contention of the applicant is that the Authority made an error with respect to its findings as to the applicant’s well-founded fear of persecution. It is contended that the Authority fell into error by asking whether there had been a “change” in the security situation in Kabul which resulted in an increased risk to Hazara Shias. In focusing on that question, counsel submitted that the Authority had misconstrued its task which was to determine whether there was a real chance of serious harm.
With respect to ground one, counsel submitted, once again un-controversially, that the Authority was required to make a finding as to whether the applicant’s claims of fearing persecution for any of the reasons he had identified was well-founded in light of the relevant country information before it. Counsel points to paragraphs 39 and 40 of the decision and reasons as demonstrating jurisdictional error. Those paragraphs found as follows:
“After consideration of the above, I accept that there have been targeted attacks on Shias in Kabul in the past and the recent attack appears to have been directed specifically against Hazara Shias, with the expressed intention of possible further attacks. I also accept that ISKP/ISIS have demonstrated the potential to undertake occasional further high profile attacks in Kabul against Shias despite having limited influence. However the information before me still raises the question of whether the bombing is indicative of a change in Kabul’s security situation to an extent that there is a real chance of serious harm for Shia Hazaras, such as the applicant, living in Kabul.
I accept country information which indicates that insurgent groups continue to target high profile groups and places in Kabul, including government institutions, political figures, ANDSF, personnel associated with coalition forces, other security services, international organisations and diplomatic representatives of some countries. However the applicant does not have any profile or association with these groups which is likely to bring him to the attention of insurgents. Although the recent attack was on a high profile protest, and demonstrates the capacity of ISKP/ISIS to undertake high profile attacks in isolated circumstances, it is not indicative of an increased risk to an ordinary Shia Hazara living in Kabul. While I accept that there continue to be security issues in Kabul, I am not satisfied of the likelihood of ISIS or any other group, being able to perpetuate further attacks against the Shia Hazara community such as to establish that the applicant as a Shia Hazara, not engaged in such activities, will face a real chance of serious harm in Kabul. I therefore find that the applicant does not face a real chance of persecution as a Shia Hazara upon return to Kabul in the reasonably foreseeable future.”[11]
[11] CB p 377 at [39] – [40].
With respect to the specific finding directly relevant to the claimed fear of the applicant, counsel drew the Court’s attention to the following passage:
“Afghanistan Analysts Network has reported that Islamic State in Khorasan Province (ISKP) which claimed responsibility for the attack had demonstrated it was capable of planning and executing occasional operations with the assistance of local recruits within Kabul in the future. Current commentary from both the Afghanistan Analysts Network and IHS Jane’s Intelligence Weekly although indicating there is a likelihood of occasional further infrequent “one off” attacks being undertaken by ISIS within Kabul against targets which include religious minorities (mainly Shia Hazaras) and causing mass casualties, does not indicate that the group will conduct regular, sustained attacks in Kabul.[12]
[12] CB pp 376 - 377 at [38].
Ms Clarke submitted that in light of those findings, the logical and correct legal conclusion was that the applicant did face a real chance of serious harm in Kabul. Instead, the Authority focused on whether there had been a change in the Kabul security situation to an extent that there was a real chance of serious harm for Hazara Shias in Kabul. It was submitted that the Authority did not make any finding as to whether, on the basis of accepted evidence, infrequent one-off attacks may occur again. There was a real chance that the applicant could be harmed in the future if he were to return to Kabul. Another way of putting that proposition would be to suggest that the Authority failed to consider the risk of generalised violence in Kabul.
It was submitted that that question was not answered by the finding of the Authority that the ISKP attack showed a capacity to perpetuate high profile attacks, but that this was not indicative of an increased risk to ordinary Hazara Shias and that the applicant did not face a real chance of persecution because he was not engaged in high profile activities.
Counsel pointed out that the Authority accepted other country information which suggested that the risk applied more broadly to all Hazara Shias and that the attacks against worshipers were not due to participation in demonstrations or political activities.[13]
[13] CB p 376 at [37].
It was submitted that the above amounted to a failure to correctly articulate and apply the real chance test. Instead, the Authority equated the finding it did make with the proper test. That approach also affected its consideration of complementary protection criteria.
It was submitted that the error of the Authority was analogous to that identified in VSAI v Minister for Immigrationand Multicultural and Indigenous Affairs.[14] In that matter Crennan J held:
“It is not necessary for an applicant to show that the seriously harmful conduct has occurred on a scale which might answer to the description of an atrocity. This is particularly so when a single instance of the feared harm will be impressive to the applicant. …”
“… the Tribunal should have asked whether the conduct in question was deliberate or premeditated, then applied the Chan test, which it had correctly described, to the applicant. Such an approach may have led to a different result. Instead, it asked a question relevant to a qualitative assessment of whether harm was serious, namely it asked whether the incidents of rape, sexual abuse and impregnation by military officers occurred on a significant scale to constitute persecution.”[15]
[14] [2004] FCA 1602.
[15] Ibid at [53] and [54].
It was submitted that the failure of the Authority to properly have regard to the evidence that it did accept was indicative of a failure to properly apply the law. The Authority asked itself the wrong question and in failing to ask itself the question required of it, committed jurisdictional error.[16] In doing so it did not engage in logically probative reasoning which was a task required of it by the logical formation of the criteria in ss.5J and 36(2)(aa).
[16] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
With respect to ground 2, it was submitted that the decision made by the Authority was not rationally open to it on the basis of the information before it which it accepted and on which it relied, and that this is so for two reasons. Firstly, the decision was unreasonable because the conclusion reached was arrived at by a flawed reasoning process based on a “serious disconnect” between the materials before the Authority and the decision itself. Alternatively, the decision was so unreasonable that no reasonable decision-maker could have arrived at it.
The first of the postulated arguments asserts that the reasoning process undertaken by the Authority was irrational on the basis of the material that it had accepted because that material did not align logically with the ultimate conclusion of breach. It is submitted that the Authority failed to analyse the risk to the applicant in light of materials that it accepted, and in particular, an article by the Afghanistan Analysts Network and IHS Janes Intelligence Weekly.
Counsel submitted that having accepted that the attack in July 2016 had been deliberately perpetrated against Hazara Shias and that those same perpetrators held an expressed intention to continue to target Hazara Shias, it was not logically probative for the Authority to hold that it did not have a well-founded fear of persecution merely because the attacks were not indicative of a change to the security situation in Kabul. Further, it was submitted that whilst the Authority expressly found that the recent attack was not indicative of a real chance of harm towards the applicant because he was not engaged in “such activities”,[17] its reasons do not demonstrate how it came to that conclusion or upon what evidence the conclusion was based. Making a finding based on no evidence where that finding was a crucial step towards its ultimate conclusion was in itself jurisdictional error, and in that sense evidence that the decision of the Authority was unreasonable.[18]
[17] CB, p 377 at [40].
[18] SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19].
Submissions of the first respondent
The first respondent submitted that the two grounds advanced by the applicant overlap to a considerable extent. It submitted that on a proper construction of the reasons given by the Authority, both grounds should be dismissed with costs. Citing SZMDS,[19] it submitted that a decision will not be illogical or irrational such as to give rise to jurisdictional error if it is one which (perhaps amongst others) may be reached by a logical or rational person on the same evidence. The proper approach is not to ask if the decision is reasonable, but whether a decision-maker could reasonably come to the conclusion.[20] Mr d’Assumpcao submitted that the Authority’s decision was both addressed to the correct question, and one that could logically, reasonably, and rationally be reached on the evidence before it. In that context, it was irrelevant that a different reasonable decision-maker could have reached a different conclusion as that would not establish jurisdictional error.
[19] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] – [135].
[20] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [21].
It was submitted that the Authority considered a range of country information which provided somewhat conflicting views on the security situation in Kabul. The fallacy in the applicant’s argument was to assume that the country information spoke with a unified voice. On the first respondent’s submission it is not possible to conclude that there was no evidence to justify the conclusion that the applicant would not face serious harm in Kabul. In summary, the first respondent submitted that the Authority’s decision indicates that it had regard to and considered competing country information, applied that information to the case as presented by the applicant, and reached a conclusion open on the evidence that the applicant would not face a real chance of persecution in Kabul. In essence, the Minister submitted that this application was a request for a merits review.
Consideration
I am not satisfied that the Authority fell into error by misconstruing or misapplying the applicable law or that it otherwise failed to ask itself the correct question.
Whilst the applicant correctly asserts that the Authority asked, in paragraph 39 of its reasons, whether there had been a change in Kabul’s security situation, it did so in the context of considering the implications of the new information about the 2016 Kabul bombing against a range of other country information. The question was asked in order to focus on the circumstances of the applicant himself, which it did in paragraph 40 of its reasons. Read in conjunction with paragraph 39, the purpose of the question can be properly understood. If any inference is to be drawn from the posing of the question, it is not that the Authority had misconstrued the relevant test, but that the Authority had concluded on the basis of country information that the security situation prior to the July 2016 bombing did not pose such a risk that the applicant (“an ordinary Shia”[21]) faced a real chance of persecution. That seems clear to me on a fair reading of paragraphs 39 and 40 in the context of the reasons as a whole. The authority appears to have accepted that no part of Afghanistan was free of conflict related violence and that people of all ethnic groups are at risk of violence from anti-government groups “but no particular group is systematically targeted solely on the basis of ethnicity”.[22] (emphasis added).
[21] CB, p 377 at [40].
[22] CB p 373 at [27].
It was not treating as relevant or necessary to the “concept” of a real chance of serious harm or real risk of significant harm the question of whether there had been a change in Kabul’s security situation, or an increased risk to ordinary Hazara Shias. It was asking whether as a matter of fact, in so far as that could be established by available country information, there had been a change in the security situation in Kabul and if so, whether there was an increased risk to ordinary Hazara Shias. It did so in order to answer the question which it correctly identified:
“ … While I accept that there continue to be security issues in Kabul, I am not satisfied of the likelihood of ISIS or any other group, being able to perpetrate further attacks against the Shia Hazara community such as to establish that the applicant as a Shia Hazara, not engaged in such activities, will face a real chance of serious harm in Kabul. I therefore find that the applicant does not face a real chance of persecution as a Shia Hazara upon return to Kabul in the reasonably foreseeable future.”[23]
[23] CB p 377 at [40].
As I have said, I am not satisfied that the Authority asked itself the wrong question or misapplied law. I dismiss ground one.
As to ground two, I am not satisfied that the applicant has demonstrated legal unreasonableness in the decision of the Authority. The reasoning complained of at paragraphs 39 and 40 of the decision cannot be said to lack an apparent and intelligible justification. On the country information before the Authority, I take the view that a logical or rational decision-maker could have come to the same conclusion as the Authority.[24]
[24] See Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [135].
I accept that on the country information, reasonable minds might have differed on the conclusion to be drawn. That is not sufficient to establish unreasonableness or illogicality. As Allsop CJ held in Minister for Immigration and Border Protection v Stretton:[25]
“The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].”[26]
[25] [2016] FCAFC 11.
[26] Ibid at [8].
And later in the same judgment:
“The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].”[27]
[27] Ibid at [21].
As I have said, I am satisfied a decision-maker could reasonably have come to the conclusion reached by the Authority in this matter. I dismiss ground two.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 12 November 2018
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