CRG16 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

CRG16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2842
Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to have a real and genuine engagement with the applicant’s submissions – whether the Authority’s findings where procedurally unfair – whether the Authority failed to exercise its power under s.473DC of the Act – whether the Authority misapplied the test for complementary protection – whether the Authority failed to give proper consideration to the applicant’s circumstances – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 473DE, 476

Cases cited:

BOS15 v Minister for Immigration [2017] FCCA 745
Applicant: CRG16
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: PEG 423 of 2016
Judgment of: Judge Street
Hearing date: 1 August 2018
Date of Last Submission: 1 August 2018
Delivered at: Perth
Delivered on: 1 August 2018

REPRESENTATION

Counsel for the Applicant: Mr R Lindsey
Solicitors for the Applicant: Cathal Smith Legal Pty Ltd
Counsel for the Respondents: Mr P Hannan
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. Grant leave to the applicant to rely upon further amended application filed on 29 June 2017.

  2. The reference to the name of the applicant by counsel on behalf of the applicant is one which is not to be recorded and there is not to be any publication of the applicant’s name.

  3. The further amended application is dismissed.

  4. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 423 of 2016

CRG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

  1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 August 2016 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

  2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Hazara and a Shia Muslim from a particular province.

  3. On 13 July 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. The delegate found that it was reasonable for the applicant to relocate to Kabul and did not accept the applicant’s claimed fear of harm by the Taliban, Kuchis, Sunni militant groups and/or Daesh if he returns to Afghanistan because he is Hazara, because he is a Shia, because his family lost their land, and/or he lived in Australia and would be considered an infidel or have a pro-western political opinion.

The Authority

  1. On 15 July 2016, the Authority…

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Details
Case
[2018] FCCA 2842
Decision Date

CaseChat Overview and Summary

This matter came before Judge Street of the Federal Circuit Court of Australia concerning an application for review of a decision made by the Immigration Assessment Authority (IAA). The applicant, CRG16, sought to challenge the IAA Assessor's decision to affirm the Delegate of the Minister for Immigration's refusal to grant a protection visa. The core of the dispute revolved around the Assessor's assessment of the applicant's claims of persecution and risk of harm, particularly in light of new evidence presented regarding security in Kabul.

The legal issues before the Court included whether the Assessor committed jurisdictional error by misunderstanding the import of new evidence concerning a July 2016 suicide bomb attack in Kabul that targeted Hazaras. Specifically, the applicant argued that this attack undermined the Delegate's earlier reliance on DFAT reports, which suggested Hazaras were not specifically targeted. Further issues concerned whether the Assessor erroneously characterised the attack as a "one-off," failed to afford procedural fairness by not putting a credibility finding to the applicant, misapplied the test for complementary protection, and failed to ascertain the legal criteria for internal relocation to Kabul.

The Court considered that the Assessor erred in law by failing to properly assess the significance of the July 2016 attack, which specifically targeted ordinary Hazaras, and by concluding it was a "one-off" event without sufficient evidence. The Assessor's finding that the applicant did not face a real chance of serious harm in Kabul was also challenged, with the applicant arguing that the Assessor conflated the assessment for refugee status with that for complementary protection. Furthermore, the Assessor's credibility finding against the applicant was deemed procedurally unfair as the applicant was not given an opportunity to explain the discrepancy in dates related to a past bombing. Finally, the Court found that the Assessor failed to consider the relevant legal criteria for internal relocation, including the applicant's personal circumstances and the prevailing conditions in Kabul, such as poverty, lack of services, and difficulty in obtaining employment.

The Court found that the Assessor had committed jurisdictional error on multiple grounds. Consequently, the Court set aside the decision of the Immigration Assessment Authority and remitted the matter to the Authority to be heard and determined by a different Assessor according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds in the further amended application are as follows: Ground Four – misunderstanding import of new evidence accepted4.1 The IAA Assessor (the Assessor) correctly stated the IAA’s submission contained new information about a suicide bomb attack in Kabul in July 2016 that targeted Hazaras, resulting in 80 deaths and 230 injuries, and that this new information constituted exceptional circumstances unknown to the Delegate thus allowing the assessor to consider it;4.2 The Delegate of the Minister (the Delegate) had acknowledged that the security situation in Kabul had “clearly deteriorated” but that nonetheless he considered, based on September 2015 DFAT and February 2016 DFAT thematic reports, the Applicant as a Hazara did not fall within the risk profile of an ethnic and religious minority who would be at risk if relocated to the relative safety of Kabul (Delegate Reasons: paragraph 86, 89 and 90);4.3 The July 2016 attack specifically targeted ordinary Hazaras in Kabul, such as the Applicant, and made unsustainable the Delegate’s earlier reliance upon the DFAT reports that the deteriorating security situation in Kabul did not show insurgent attacks were targeted specifically against ordinary Hazaras;4.4 The Assessor ignored and failed to recognise that this new evidence showed that the July 2016 attack on Hazaras completely undermined the earlier finding of the Delegate based on the DFAT reports that Hazaras, such as the Applicant, would not be at risk of serious harm in Kabul from Daesh. Having ignored the centrality of this additional evidence to the Delegate’s adverse finding the Assessor merely concluded this new evidence demonstrated Daesh have conducted “one off” attacks and that there was no evidence Hazaras or Shias such as the Applicant face a real chance of serious harm in Kabul (paragraph 17 of the Assessor’s Reasons).4.5 The Assessor committed jurisdictional error in that:a) he did not ask himself the correct legal question in the light of the new evidence presented to him which was whether the July 2016 attack undermined the earlier DFAT reports and basis of the Delegate’s earlier adverse finding;b) he did not address the specific nature of the claim and therefore failed to discharge his statutory duty. Notwithstanding the July 2016 bomb blast targeted specifically ordinary Hazaras, and the acknowledged level of insecurity caused by attacks from anti-Government entities, he wrongly attributes these attaches as non-discriminatory as only faced by the population at large (paragraph 20 of the Assessor’s Reasons);Ground Five – Erroneous finding that this was a “one-off” attack5.1 The Assessor concluded that the DFAT reports demonstrated Daesh have conducted “one-off” attacks and that at the date of his decision there was no evidence of additional targeting of Hazaras or Shias such that they would face a chance of serious harm in Kabul (paragraph 17 of the Assessor’s Reasons).5.2 The attack upon Hazaras in July 2016 occurred within one month of the Delegate’s decision and in the context of a Kabul security setting that the Delegate had found “was deteriorating”. Further, there was no evidence to support a conclusion that based on the reports available to the Assessor this would be a “one-off” attack against Hazaras such as the Applicant.5.3 The Applicant seeks leave to adduce evidence contained in the Affidavit of Daniela Anne Marie Ion that since the decision made by the Assessor on 23 August 2016, that there have been further reliable reports which show that this was not a “one-off” attack and the Assessor was wrong to decide therefore that there was not a real chance of serious harm to the Applicant.5.4 The Assessor committed jurisdictional error in that:(a) the country information did not support a conclusion that there was not a real chance of serious harm against Hazaras such as the Applicant by Daesch;(b) the reports referred to in the Affidavit of Daniela Anne Maria Ion relating to country information subsequent to the decision proves that this was not an isolated “one-off” attack;(c) there was no intelligible justification, even on the information then available to the delegate and Assessor, for the Assessor to conclude this would be a “one off” attack. The delegate had correctly referred to “numerous incidents” and to a “deteriorating situation” in Kabul.(d) that it was procedurally unfair for the Assessor to conclude that the July 2016 attack was likely to be a “one-off” attack without giving the Applicant an opportunity to refute what comprised a reason for making the adverse determination.Ground Six – not putting credibility finding to Applicant6.1 The Assessor said that the Applicant, when asked by the Delegate whether anything had happened to his family since they relocated to Kabul, the Applicant referred only to the death of friends in a Muharram bomb blast “which I rejected the above as not being credible” (IAA: paragraph 27). The Assessor considered the Applicant “fabricated the claim” that during Muharram in 2012 that he attended a Mosque when friends were killed (paragraph 16). The Applicant did say he believed it was during Muharram in 2012 the friends were killed, but did not say he was present and attended the Mosque where this occurred.6.2 The Delegate found that “when [the applicant] was living in Kabul in October 2012, some of his friends experienced an explosion in a mosque, however I have been unable to locate any country information that supports this claim… in light of this lack of supporting information as to the scale of any such attack, I give more weight to the DFAT information which states there is no evidence that Hazaras have been systematically targeted…” (paragraph 91). No adverse finding as to credibility was made by the Delegate against the Applicant.6.3 Conversely, the Assessor found the evidence given by the Applicant to the Delegate was not credible and was “fabricated” without first inviting the Applicant to give any evidence about the matters in 3.1 and 3.2.6.4 Had the Assessor invited the Applicant to give evidence, the Applicant would have explained:(a) as stated in the Affidavit of Daniela Ion that his calculated dates were based on the Persian calendar; that he could name the two friends killed; that he has checked on line and there was in fact a Mosque bombing in December 2011 which covered the Muharram period;(b) he had told the Delegate that ordinary people get attacked here, not the Government authorities, and also there is a lot of suicide bomb attacks against Shia people in mosques and that sort of thing” (page 16, transcript line 510-530). That this is now supported by verifiable recent events.6.5 The Assessor therefore failed to extend procedural fairness to the Applicant and thereby committed jurisdictional error.Ground Seven - Misapplication of test for complementary protection7.1 The Assessor fell into jurisdictional error by misconstruing or misapplying the test for complementary protection and or failing to ask himself the correct legal question.7.2 The Applicant claimed to be at real risk of suffering significant harm throughout Afghanistan and thus to be a person to whom Australia owes complementary protection obligations (CB 205, [22]). The Applicant also claimed to be owed protection obligations as a refugee (CB 205, [21]).7.3 The Assessor found that the Applicant, as a Hazara did not have a well-founded fear of serious harm and for a Convention reason in Kabul, and thus was not a person to whom Australia owed protection obligations as a refugee, even though there is a level of general insecurity in Kabul due to attacks “but consider these threats are faced by the population at large” (CB 217-8, [20]-[21]).7.4 In coming to his conclusion about the Applicant’s refugee status, the Assessor cited country information detailing a suicide bomb attack in Kabul (CB 217, [17]) and threats to the population generally from anti-government elements such as the Taliban and Daesh (CB 217, [20]).7.5 The Assessor then found that the Applicant was not owed complementary protection obligations and stated “again for the same reasons and applying the authority in MIAC v SZQRB I am not satisfied that the Applicant faces a real risk of significant harm in Kabul” (CB 218, [26]).7.6 The Assessor thus fell into jurisdictional error in that:a) Having recognised that the level of general insecurity in Kabul due to attacks from anti-government entities, including the Taliban and Daesh, is faced by the population generally, he did not then ask himself whether the Applicant was owed complimentary protection because the threats from the Taliban and Daesh also puts him at personal risk so as to negate exclusion under s.36(2B)(c) of the Act (see BOS 15 v Minister for Immigration 2017 FCCA 745 at [29]).b) The Assessor instead equated his finding that the Applicant would not face a real chance of serious harm in Kabul for a Convention reason with his finding that the Applicant would not face a real risk of significant harm under the complimentary protection head;c) The Assessor did not make an assessment on the risk of generalised violence in relation to the refugee convention which would foreclose further consideration for the purposes of his assessment of the Applicant’s complementary protection claim (see BOS15 v Min for Immigration [2017] FCCA 745 at [30]).d) The Assessor had been provided with information of significant and deteriorating conditions in the country information relating to Kabul after the delegate decision. The Applicant also referred to the risk of suicide explosions ‘every day’ in Kabul (p16 transcript of delegate interview). In addition the Applicant himself, provided examples of risk of generalised violence to residents if returned to Kabul (CB- 19) and raised the issue of lack of security, (CB- 88 [20]) where he referred to attacks from Sunni militia, Taliban, ISIS, and stated that Kabul is too dangerous to return.e) Further the Applicant referred to a ‘personal risk’ being that ‘they say you lived in an infidel country and you might be a spy’ (p17 transcript of interview) and that he would ‘get killed, it’s only a matter of me being seen by a Talib and they would kill me’. He further stated they would kill him because he came from ‘this country they will think I am a spy or something’ and that he feared ISIS as well (p17 transcript of interview). Therefore, the Applicant in addition put forward material to support a real and personal risk to engage a non refoulement obligation against a backdrop of serious human rights violations. Although this material was considered as an ‘exaggeration’ it was only in the context of Convention Grounds or ‘Refugee Assessment’ (CB- 217 [16].Ground Eight: Failure to ascertain if legal criteria for internal relocation has been met8.1 The Assessor found that the Applicant had a well-founded fear of persecution from Kuchis for the combined reasons of his race and/or religion if returned to Wardak being his place of origin (paragraph 14 of the Reasons of the ITAA), but he was not satisfied the Applicant had a well-founded fear of persecution for any of the reasons in s.5J(1)(a) of the Migration Act 1958 (the Act) if he returns to Kabul (paragraph 20) and he does not meet the definition of refugee in s.5(H)(1) and s.36(2)(a) of the Act.8.2 In determining the question of relocation to Kabul, the Delegate failed to consider, aside from the risk of serious harm, the appropriate legal criteria as to whether it was reasonable, in the sense of practicable, taking into account the Applicant’s personal circumstances and the situation in Kabul and whether he could now reasonably subsist in Kabul, and instead limited assessment to the existence of a family network in Kabul, and some linguistic and computer skills attributed to the Applicant as gained since his arrival in Australia (paragraphs 104 and 105 of the Delegate’s reasons).8.3 The Assessor in considering reasonableness of internal relocation referred only to the limited factors set out at paragraphs 19, 27 and 28 of his Reasons.8.4 The Assessor (and Delegate) erred in that;(a) country information was ignored which showed: that when the Applicant’s family came to Kabul the city had expanded from 500,000 to nearly 5,000,000 and that large parts of the city are extremely poor and have no sanitation or basic services; the low capacity of government to absorb returned refugees; that the Government was encouraging migrants to Kabul to go back to their areas of origin; rents are high and persons are living in illegal housing; that the migrants had little or no protection against eviction; that it was very difficult for them to obtain a livelihood; and that public services such as water and sanitation were not available (Submission to Delegate of 30 July 2016);(b) failed to consider whether the Applicant returning from a Western country after six years could gain employment in Kabul with the skills attributed to him by the Assessor;(c) failed to consider the prospects of the Applicant being able to obtain employment restricted to employment in Kabul taking into account his inability to travel to his original homeland because of recognised unsafe areas, e.g. roadways to Hazarajat.8.5 The Assessor committed jurisdictional error in that he:(a) erred in law in failing to consider relevant legal criteria relating to both the Applicant’s personal circumstances and the conditions presently in Kabul (MIPB v SZSCA2014 HCA 45 adopting at [26] and [27] the principles in Januzi v Secretary of State 2006 2AC 426 (5));(b) ignored the submissions advanced pursuant to the claim as to why the Applicant could not reasonably be relocated to Kabul taking into account the extent of likely economic hardship and the unlikelihood of finding employment in Kabul itself (s.5J(5)(d), (e),(f));(c) ignored or failed to consider relevant country information about Kabul conditions;(d) failed to consider how far it would be “reasonable” in the sense of practicable for the Applicant on return to be confined to Kabul taking account of the risk of serious harm accepted as occurring outside Kabul.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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