CQQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 78
•24 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)CQQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 78
File number(s): MLG 1274 of 2017 Judgment of: JUDGE JARRETT Date of judgment: 24 September 2021 Catchwords: CITIZENSHIP AND MIGRATION – International Treaties Obligations Assessment – application for judicial review – whether assessor applied correct test – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 474(2), 474(3)(h), 476, 477(1) Cases cited: Jess v Scott (1986) 12 FCR 187
Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 10 June 2021 Date of hearing: 10 June 2021 Place: Brisbane, by audio link to Adelaide and Melbourne Counsel for the Applicant: Mr Churches Solicitor for the Applicant: Diaspora Legal Counsel for the First Respondent: Mr Wood Solicitor for the First Respondent: Sparke Helmore ORDERS
MLG 1274 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQQ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
24 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.Pursuant to s.477(2)(b) of the Migration Act 1958 (Cth), the time within which the applicant may make application to this Court pursuant to s.476(1) of the Migration Act 1958 (Cth) is extended to 15 June, 2017.
3.The amended application filed on 3 March, 2020 is dismissed.
4.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:
On 17 June, 2015 an international treaties obligation assessment was commenced to assess whether the circumstances of the applicant engaged Australia’s non-refoulement obligations. This assessment was undertaken to assist the first respondent’s Department to consider whether there were any non-refoulement concerns which would prevent the first respondent from removing the applicant from Australia.
On 22 January, 2016 the assessment undertaken by the second respondent was given to the applicant. It was to the effect that there were no non-refoulement obligations impeding his removal from Australia.
The assessment was a “migration decision” within the meaning of the Migration Act 1958 (Cth) having regard to the extended definition of “privative clause decision” in s.474(2) and 474(3)(h), in relation to which this Court has jurisdiction under s.476 of the Act. Accordingly, the usual time limit under s.477(1) applies – any application to this Court for a remedy to be granted in exercise of this Court’s jurisdiction was required to be made within 35 days of the date of the decision.
BACKGROUND
The applicant was born in Kabul in 1965. He is a national of Afghanistan and a Muslim of the Shia faith. He arrived in Australia, seeking asylum, in 1999 and was granted a temporary protection visa. In 2003 he departed Australia for Afghanistan, having determined that it was safe to do so. But after one month in Afghanistan the applicant decided that it was too dangerous and left for Pakistan. In 2009 the applicant decided it was too dangerous in Pakistan and determined to come to return to Australia.
On 28 February, 2010 the applicant arrived at Christmas Island. He attended an entry interview on 1 April, 2010. On 7 May, 2010 the applicant lodged an application for a protection visa. On 11 May, 2010 the applicant attended a refugee status assessment interview for the purposes of his visa application.
On 13 May, 2010 the applicant lodged a written submission in support of his application. However, on 22 June, 2010 the applicant’s application was refused.
On 26 August, 2010 the applicant lodged an application for independent merits review. On 30 September, 2010 the applicant lodged a second written submission. On 11 February, 2011 the applicant was interviewed by the independent merits reviewer.
On 6 July, 2011 the applicant’s review application was refused. The refusal was notified to the applicant by letter dated 18 July, 2011. The applicant filed an application for review in this Court but that application was refused on 9 December, 2011.
On 22 August, 2012 the applicant made a request for ministerial intervention pursuant to s.46A (1) of the Act. That application was refused on 5 December, 2012.
The assessment which is the subject of the present application commenced on 17 June, 2015. It was initiated by the first respondent’s Department “due to recent legal developments and changes to departmental policy”. By correspondence that date, the applicant was invited to give to the Department any further information which he would like to have taken into account in the new assessment.
On 3 July, 2015 the applicant’s agent made a submission on his behalf which included various documents including the declaration deposed by him on 28 June, 2015. The further submission was made on 14 July, 2015 by the applicant’s agent.
The applicant was interviewed for the purposes of the second respondent’s new assessment on 1 September, 2015.
On 22 January 2016, the second respondent completed its new assessment and notified the applicant the outcome. The new assessment determined that the applicant was not owed non-refoulement obligations by Australia.
The second respondent found that the applicant is from an area of inner-west Kabul and that he had lived there from his birth until his departure from Afghanistan in November, 1999. The evidence showed that this region has hosted a large Hazara population for a long period of time. The second respondent noted that he was in Australia as the holder of a temporary protection visa between November, 1999 and September, 2003, when he returned to Afghanistan. He subsequently returned to Australia, by boat to Christmas Island.
The first respondent summarised the second respondent’s determinations in the written submissions relied upon by the first respondent the present application. It was not suggested that the summary was inaccurate and I have drawn upon it hereunder.
The second respondent recorded that the applicant’s business was carpet manufacturing and from 2005 for a period, he operated the business in a Hazara-majority province. He had people who worked for him and he sold the carpets to Pakistan and Kabul. He operated a car to transfer goods to Kabul. He also travelled between Kabul and Pakistan. Prior to coming to Australia in 2010, he was residing in Karachi, Pakistan, and “travelling to Afghanistan for business reasons”.
The second respondent referred to UNHCR advice about the security situation in the applicant’s home province generally, noting that there have been various incidents of hijacking, looting, robberies and killing, and that it is a stronghold for the Taliban. However, “[t]he situation is relatively stable [in certain parts of the province…]. Only small incidents of theft have been reported there. Travel from Kabul to the districts is not a problem for the local population”.
At the interview for the purposes of the assessment, the applicant claimed to have been attacked once on the roads, in 2006-2007, and his carpets and vehicle were stolen. In response to the suggestion that the attack appeared to have a criminal motive rather than religious or racial motive, the applicant “responded that the Taliban tied his hands and he escaped from them when he got into the ditch, and he ran even though they were shooting at him”. The second respondent put to the applicant that he had not made this claim in his statutory declaration. “The [applicant] responded that he did not know about these things or the signing. The [applicant’s] responses to me in the ITOA interview did not satisfactorily resolve my concerns about the plausibility of his claims on this point.” Amongst other concerns, the second respondent noted that he had previously said to the IMR Reviewer that “he was stopped six times by the Taliban in the period 2003-2009 and was insulted as a Hazara, but he was not robbed”.
On questioning about this attack, at his interview, the applicant said that he could not remember the incident exactly. Based on that the and the content of his earlier interviews, the second respondent considered that the applicant had not provided clear and consistent details about having his truck or goods stolen whilst he was in Afghanistan. Consequently, the second respondent did not accept that the applicant was ever forced to leave his vehicle with carpets or other goods in it to protect his own safety whilst he was in Afghanistan.
The second respondent considered his claims that whilst travelling with Pashtuns in a taxi to his factory in Wardak he was stopped by the Taliban to be implausible. It accepted as plausible that the applicant had been searched and possibly had money taken by the Taliban. It did not accept the applicant’s claims that he was smuggled or needed to travel in disguise.
Further, the second respondent accepted that the Taliban may have, to threaten him, slapped the applicant whilst taking 50,000 Rupiah off of him. However, the second respondent found that the Taliban allowed the applicant to depart. The second respondent did not accept that the applicant had to escape from them or that that the Taliban shot at him whilst he was running along a ditch. The second respondent noted that those claims were not included in the applicant’s statutory declaration attached to his protection visa application.
The second respondent referred to the applicant’s claim made in his interview on 11 February, 2011 that he has been insulted as a Hazara by the Taliban six times in the period 2003-2009 when travelling on the road between Ghazni and Kabul. The second respondent thought that indicated that the applicant had been stopped by the Taliban very infrequently and on average once per year. The second respondent considered that if the applicant has been stopped and insulted by the Taliban for being a Hazara, possibly forced to hand over money, and then permitted to continue on his way, six different times, it would indicate the applicant was not a person of interest to the Taliban. The second respondent considered that being insulted for reasons of race in the way described by the applicant fell short of the requisite degree of Convention-related harm to amount to persecution.
The second respondent concluded that the Taliban never seriously harmed the applicant, and did not appear to be interested in pursuing him, despite having the opportunity to seriously harm or kill him several times between 2003 and 2009. The second respondent did not accept that the Taliban would have imputed to the claimant that he was anti-Taliban, anti-Sunni, or that he would be imputed to have a pro-western political opinion sufficient to seriously harm him. The second respondent did not accept that the Taliban would have sought to seriously harm the applicant because of his race or religion or based on his previous experience with them.
Thus the second respondent found that the Taliban held no particular interest in the applicant.
After considering the country information referred to in the second respondent’s assessment record, the second respondent concluded that it was not satisfied that there was a real chance that the applicant would be seriously harmed or killed by the Taliban in Afghanistan. It considered that, unless he was an Hazara Shiite with particular characteristics that would draw adverse attention from agents of harm, he was not at risk of being targeted by the Taliban or related groups in Afghanistan.
The second respondent considered the applicant’s claims that he was at risk of being kidnapped on the roads. As to that matter it noted that the applicant had never been kidnapped previously, notwithstanding that he readily travelled by taxi within Afghanistan in travel between Pakistan and Afghanistan. The second respondent assessed the applicant as an experienced traveller, familiar with the road network system from Kabul. It noted country information suggesting that kidnappings are relatively rare for Hazaras in Afghanistan. It noted the applicant’s experience that in the past he had travelled with Pashtun taxi drivers and been allowed to pass by the Taliban when doing so. In the event that the applicant thought the particular route was unsafe, the second respondent considered that he could use subcontractors to make deliveries as he had done so in the past. The second respondent assessed that “there is less than a real chance the [applicant] would be seriously harmed whilst travelling on the roads from Kabul or of being kidnapped for Convention reasons in the foreseeable future”.
The second respondent assessed that Kabul would be a place the applicant could go to, where he could establish himself and his family. In particular, the second respondent noted that there were large communities of Hazaras in Kabul, and he could relocate there safely. It substantially reiterated its analysis, in that respect, as to the risk that he would be seriously harmed on the roads as not being a real chance.
Finally, when dealing with complementary protection, the second respondent noted that any risks which the applicant may face in Kabul were not risks that the applicant would face personally, but would be faced by the population generally for the purposes of s.36(2B)(c) of the Act.
APPLICATION FOR REVIEW
The applicant commenced these proceedings on 15 June, 2017. The application was made approximately 16 months out of time. Accordingly, the applicant applied for an order under s.477(2) of the Act extending the time within which to commence the present review application.
On 4 March, 2020 the applicant filed an amended application. In his amended application the applicant seeks the extension of time on the basis of the matters set out in his affidavit of 2 March, 2020 and the “severe” prejudice that he would suffer if the extension of time were not to be made. The explanation in his affidavit is to the effect that he was confused upon receiving the second respondent’s assessment, he did not know that he could challenge it in a court, his lawyer who had previously acted for him did not return his calls and it was not until shortly before he commenced these proceedings that he received help from an Egyptian man who referred him to the lawyer who filed the application on 15 June, 2017.
AN EXTENSION OF TIME?
The discretion conferred by s.477(2) of the Act is unfettered once enlivened but must be exercised judicially. That requires an identification of the relevant factors that might bear upon the exercise of the discretion and weighing of those factors. This is a different exercise to determining whether it is necessary in the interests of the administration of justice to make an order extending the time within which the application must be commenced, although the two are inextricably connected. The discretion is not to be exercised in favour of an application lightly. The need for time limits to be observed is important: Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470. The longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187.
Ordinarily, the factors relevant to the exercise of the discretion to extend time within which proceedings for review of a decision, such as these in issue here, might be commenced include:
(a)the extent of the delay;
(b)whether there is a reasonable and adequate explanation for the delay;
(c)whether the substantive application is sufficiently arguable to support the application for an extension of time; and
(d)whether there is any prejudice to the respondents.
The proposed substantive application for judicial review should have such prospects of success so as to not render the extension of time an exercise in futility. Those prospects should be assessed at a relatively impressionistic level.
The applicant’s explanation for the delay in commencing his application is not particularly persuasive. However, the first respondent identifies no prejudice should the Court grant the extension as sought. The first respondent submits that in the event that the Court considers, on an impressionistic evaluation, that the proposed ground of review has sufficient merit it would be appropriate to grant the extension. The first respondent submits that whilst the proposed ground is weak on a full examination, it is not so weak that when assessed impressionistically the Court should refuse to grant the extension sought.
Having regard to the first respondent’s concessions and my own assessment I think that it is necessary in the interests of the administration of justice to grant the extension for which the applicant has applied.
THE GROUNDS OF REVEIW
The ground of review set out in the amended application is in the following terms:
1.The [second respondent] failed to engage with the claims raised by the applicant and/or was legally unreasonable as a result of inconsistencies between the accepted findings of the assessor including those based on accepted country information and the finding that the applicant did not face a real chance of harm in future, if returned to Afghanistan.
1.1The assessor accepted that the applicant had been stopped and insulted by the Taliban on roads in Afghanistan on six separate occasions between 2003 and 2009, and that on another occasion he had been physically harmed.
1.2The assessor also accepted that the applicant relied on driving to make a living, and appears to have accepted that he would continue to do so on return to Afghanistan.
1.3The assessor also accepted country information from the Department of Foreign Affairs and Trade (DFAT) that Hazaras were at greater risk of kidnappings by the Taliban on the roads from Kabul than other ethnic groups, and from the United Nations Assistance Mission to Afghanistan (UNAMA) that 97 Hazaras had been kidnapped in the first half of 2015.
1.4The assessor then appears to have rejected the applicant’s claim that he could be kidnapped or otherwise harmed while travelling in Afghanistan on the basis that the perpetrators of that harm might have motivations other the one involving a convention ground including a financial motivation, without properly engaging the applicant’s claim that, as a Hazara person travelling on the road, he faced a real chance of being harmed by the Taliban.
1.5The assessor also failed to deal with the future risk which the applicant claimed would befall him, should he in the future drive on the roads in Afghanistan to make a living.
The applicant submits that these grounds might be summarised as first, a rejection by the second respondent of the applicant’s claim that he might be kidnapped or otherwise harmed while travelling in Afghanistan, that rejection not having engaged with the applicant’s claim that, as a traveller by road, he faced a real chance of being harmed by the Taliban; and second, a failure by the second respondent to deal with the future risk claimed by the applicant in respect of his driving in Afghanistan to make a living. The applicant argues that the ground of review ought to be considered against the following matters accepted by the assessor:
1.1The Applicant had been stopped, robbed and beaten by the Taliban on Afghan roads on six occasions between 2003 and 2009 (CB 294.5, 295.2);
1.2The Applicant drove to make a living and expected that to be the case if he were returned to Afghanistan (this generally throughout Applicant’s evidence);
1.3DFAT country information that Hazara were at greater risk of kidnapping by the Taliban on roads connecting with Kabul than other ethnic groups CB 303.2-3, 305.3; and UN Assistance Mission to Afghanistan information that 97 Hazara had been kidnapped in the first half of 2015: CB 286.1-4, 303.4.
The difficulty with this submission is that the second respondent did not accept that the applicant had been stopped, robbed and beaten by the Taliban on Afghan roads on six occasions between 2003 and 2009. I have set out the findings of the second respondent above. It expressly noted the applicant’s claim that the Taliban did not beat him on six other occasions between 2003 and 2009 when he claimed they had previously stopped him. Nor did the second respondent find, or accept, that the applicant had been robbed on each occasion that he was stopped. This fundamental misconstruction of the second respondent’s reasons undermines the applicant’s arguments.
The second respondent engaged with the applicant’s case. It made findings and explained why those findings were made. It explained why it did not accept various aspects of the applicant’s claims.
It gave consideration to the country information before it and recognised that there was a risk of travel for Hazaras. In that respect it said (footnotes omitted):
Risk of travel or of the Claimant being kidnapped on roads.
I note DFAT advised in September 2015 that all Afghans are vulnerable to violent attacks associated with insurgent and/or terrorist groups. DFAT did not have evidence to suggest that Hazaras are systematically targeted in these attacks on the basis of their ethnicity alone. DFAT assesses that, with the exception of kidnappings, Hazaras are not currently at any greater risk of violence than other ethnic groups in Afghanistan. DFAT also assessed that while no ethnic group was immune from kidnappings, DFAT assessed that Hazaras travelling by road between Kabul and the Hazarajat faced a risk which is greater than other ethnic groups. It was unclear whether this was due to ethnic targeting or was a result of the high numbers of Hazaras travelling on this route. Nonetheless, DFAT assesses that, if a bus with a mixture of ethnic groups on board is stopped in these areas, ethnic Hazaras (and other non-Pashtuns) are more likely to be selected for kidnapping or violence than Pashtun passengers. It should be noted, however, that kidnappings of Hazaras are relatively rare in a country-wide context. According to the UNAMA 2015 mid-year report on protection of civilians in Afghanistan, of the 196 abduction incidents country-wide in the first six months of 2015, only 10 incidents involved Hazaras. All but one of the kidnappings of Hazaras occurred in areas of mixed Hazara and non-Hazara communities. A total of 97 Hazaras were reported as being abducted, 67 of whom have been confirmed as being subsequently released.
I note the [applicant] has never been kidnapped previously in Afghanistan. The [applicant] regularly travelled by taxi within Afghanistan and travelled between Pakistan and Afghanistan. The [applicant] is an experienced traveller and is familiar with the road networks to and from Kabul. I note that kidnappings are relatively rare for Hazaras in Afghanistan. The [applicant] has worked with Pashtun taxi drivers before and been allowed to pass by the Taliban previously on the roads. The [applicant] had also indicated that he used subcontractors to work for him and I assess he could use subcontractors to make deliveries if he felt a particular route was not safe. I assess there is less than a real chance the [applicant] would be seriously harmed whilst travelling on the roads from Kabul or of being kidnapped for Convention reasons in the foreseeable future.
It is apparent from these passages that the second respondent identified the risk evidenced in the country information and then assessed the magnitude or likelihood of that risk having regard to the applicant’s experiences so as to determine if it was satisfied that there was real chance of serious harm to the applicant. The second respondent identified that the country information evidenced a risk to the applicant as a Hazara travelling in Afghanistan and in particular on the roads to Kabul. It considered matters personal to him and in particular that he had not been kidnapped in the past, despite being a frequent traveller on the roads and that he had no particular characteristics that attracted the adverse attention of the Taliban. Further it considered that while Hazaras travelling on the roads faced a greater risk than other ethnic groups, kidnappings of Hazaras were relatively rare. The second respondent took into account that the applicant was a knowledgeable and experienced traveller and was experienced with the road networks. It considered, as it was entitled to do, that if the applicant considered that a particular road was not safe, he could use another person to drive a particular road in connection with the operation of his business, as he had done in the past.
I accept the first respondent’s submission that the analysis undertaken by the second respondent was open on the material. As the first respondent submits, the real chance requirement in s.5J(1)(b) of the Act demands an evaluative question of fact and degree of the second respondent.
I do not accept the applicant’s argument that “The issue is not what the Taliban would have sought to do, but rather what the Taliban might reasonably inspire fear as to what they would do in the future.” The focus of the real chance test, which must be satisfied if an applicant is to be found to have a well-founded fear of persecution, is upon an evaluation of what a persecutor might do, not what a persecutor might reasonably inspire fear as to what they would do in the future.
The reasoning pf the second respondent was logical, coherent and cogent. There are no inconsistencies between the second respondent’s findings. The basis of this submission misinterprets the second respondent’s reasons. In my view, the second respondent engaged with the applicant’s claims and gave them active consideration.
CONCLUSION
The ground of review agitated by the applicant reveals no jurisdictional error. The application must be dismissed with costs fixed according to the scale prescribed by the rules of this Court.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett. Associate:
Dated: 24 September 2021
0
3
1