CTS17 v Minister for Immigration

[2019] FCCA 1596

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTS17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1596

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise (subclass 790) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190

CLR 225; 71 ALJR 381; 142 ALR 331

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

CED15 v Minister for Immigration and Border Protection [2018] FCA 451

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1

NAHI v Minister for Immigration & Multicultural &  Indigenous Affairs [2004]

FCAFC 10

Applicant: CTS17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1332 of 2017

Judgment of: Judge Mercuri

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Melbourne

Delivered on: 13 June 2019

REPRESENTATION

Advocate for the applicant: Mr Markwell

Solicitors for the applicant: William John Markwell

Counsel for the respondents: Mr Goodwin

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 23 June 2017 and amended on 3 February 2019 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1332 OF 2017

CTS17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of the decision made by the second respondent, the Immigration Assessment Authority (“the IAA”) on 31 May 2017 which affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on 21 November 2016 not to grant the applicant a protection visa pursuant to sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is of the Shia religion from the Hazara ethnic group of Afghanistan.[1] He arrived in Australia by boat on 6 July 2013.[2] The applicant applied for a Safe Haven Enterprise (subclass 790) visa (“SHEV visa”) on 2 September 2016.[3] A Hazargai interpreter assisted the applicant at the interview with the delegate of the Minister. The applicant’s application for the protection visa was refused on 21  November  2016 and was referred to the IAA on 24 November 2016. The IAA affirmed the decision of the delegate on 31 May 2017.

   [1] Court book page 13.

   [2] Court book pages 11 to 30.

   [3] Court book page 36.

The applicant’s claims

1. The IAA summarised the applicant’s claims in paragraph 3 of its decision record as follows:

   a)He is a Hazara Shia from Parwan Province. The applicant worked as a driver between his home village in the Turkman Valley and Kabul.

   b)He fears he will be harmed by the Taliban and the ‘Sons of Malik Ghafoor’, who are known as government and Taliban associates, who terrorise and kill Hazaras, Shias and others.

   c)In May 2013, he was driving a number of passengers to Kabul when a group of armed men signalled for him to pull over. He turned on his indicator to pull over, but his customers insisted he drive on. The armed men fired at his vehicle, but they escaped.

   d)When they arrived in Kabul his passenger told him that he was a guard at the Presidential Palace and that the armed men were seeking to target him. The applicant realised that by helping a government worker escape, he himself would become a target.

   e)He called his uncle and wife in his village and told them about the incident. His family then fled to Kabul as they knew the Taliban and the Sons of Malik Ghafoor would search for him. Shortly thereafter he made arrangements to flee the country.

   f)One of the Sons of Malik Ghafoor called his uncle and said that the applicant had put their lives in danger by helping the government. They threatened that they would find the applicant and his sons and teach them a lesson not to betray them.

   g)His wife and family now live in constant fear and need to move to different locations in Kabul to hide their whereabouts from Taliban spies.

   h)The applicant fears harm from the Taliban, as well as extremist Pashtuns and other extremist groups in Afghanistan such as Islamic State.[4]

   [4] Court book page 131 at paragraph [3].

The IAA’s reasons

1. In its decision record, the IAA set out the relevant provisions in the Act which define the circumstances in which a person will be considered to be a refugee[5] and the requirements which must be satisfied to justify a finding that a person has a ‘well-founded fear of persecution’.[6]

   [5] Court book page 131at paragraph [4].

   [6] Court book page 132 at paragraph [5].

2. At paragraph 9 of its decision record, the IAA noted:

   The applicant’s claims principally relate to an incident that occurred shortly before he left the country. He had been working as a driver between Parwan and Kabul, transporting customers and goods (groceries) between the two areas.  He travelled quite regularly and claims to have witnessed security incidents on the road.  He gave one example of a truck that had been set on fire and the driver killed.  While there were security incidents on the road, the applicant did not claim to have encountered any difficulties himself in the five years he had driving on the road.[7]

   [7] Court book page 132 at paragraph [9].

3. The IAA then set out the applicant’s evidence in support of his claims and concluded that:

   a)the applicant was a driver in Parwan;

   b)the applicant regularly travelled between his home area and Kabul and other towns along the way; and

   c)if he was driving for five years, he would have seen a number of security incidents and it was plausible that his own vehicle was shot at by armed men.[8]

   [8] Court book page 133 at paragraph [14].

4. However, the IAA:

   a)was ‘not satisfied that his passenger was associated with the Afghan Government or the Presidential Palace.’[9]; and

   b)did not accept that the ‘applicant would have been identified by the attackers or that he would have become a person of such interest to them.’[10]

   [9] Court book page 133 at paragraph [15].

   [10] Court book page 133 at paragraph [16].

5. At paragraph 20 of the IAA’s decision record, the IAA went on to conclude that although it accepted that the:

   …applicant was encouraged by his passengers to accelerate away in order to avoid the danger, and that they were shot at, but escaped.  However, beyond that, I do not accept the applicant has any ongoing profile with the attackers, that he was identified, or that he or his family are at risk from these elements.  I do not accept that his uncle and family immediately fled their home area.[11]

   [11] Court book page 135 at paragraph [20].

6. The IAA further concluded that there was:

   …no real chance of (the applicant) being seriously harmed by the Taliban, the Sons of Malik Ghafoor, or any other AGE or criminal group in connection with the incident in May 2013, or on the basis of any other profile.[12]

   [12] Court book page 135 at paragraph [21].

7. The IAA then considered the applicant’s claims of fearing harm on the basis of his ethnic or religious background and on the basis of his actual or imputed political opinions[13] and concluded that the applicant would face no real chance of harm for these reasons. At paragraph 29, the IAA considered risks associated with Islamic State and was not satisfied that ‘there is any real chance of the applicant being seriously harmed by Islamic State in Parwan because of his religion, ethnicity or for any other reason.’[14]

   [13] Court book pages 135 to 137 at paragraphs [22] to [28].

   [14] Court book page 137 at paragraph [29].

8. At paragraphs 30 to 33, the IAA considered the risks to the applicant ‘through general insecurity and criminality in the province, including on the roads.’[15] Having regard to country information, the IAA concluded that the applicant was not at real risk of harm because of his religion or ethnicity on the roads in Parwan Province.

   [15] Court book page 137 at paragraph [30].

9. The IAA then went on to consider whether in any event, the applicant could mitigate any of the risks that he does face by modifying his behaviour. It concluded that he could do so without having to modify any immutable characteristic.[16]

   [16] Court book pages 138 to 139 at paragraphs [34] and [35].

10. The IAA also discussed the applicant’s ability to safely access his home area, despite acknowledging that there are some risks on the roads. The IAA concluded that the applicant would be able to do so safely.[17]

    [17] Court book page 139 to 140 at paragraphs [37] to [38].

11. Whilst stating that it was not necessary to reach a concluded view on the issue, the IAA stated that the limited risks faced by the applicant, such as they are, arise not from his individual profile or background, but are rather ‘due to insecurity and criminality in the province.’[18]

    [18] Court book page 140 at paragraph [39].

12. The IAA set out its conclusions in relation to the applicant’s claim to be a refugee at paragraphs 40 and 41[19] and its assessment of the applicant’s claims under the complementary protection provisions at paragraphs 42 to 47.[20]

    [19] Court book pages 140 to 141.

    [20] Court book pages 141 to 142.

Ground of review

1. The applicant only advanced one ground of review, namely:

   The Second Respondent erred when it failed to take into account a relevant consideration.

   Particulars

   (a)The Second Respondent failed to consider whether the Applicant was a member of a Particular Social Group (PSG), with the PSG being made Hazara Shias, whose occupation is driving between Kabul and Parwan, carrying passengers and/ or freight between these areas.

   (b)If the Second Respondent had considered whether the Applicant was a member of the PSG, then the Second Respondent should have found that the Applicant had a ‘well-founded’ fear of persecution as set out in s 5J(1)(a) of the Migration Act 1958 (The Act) and then may be classified as a Refugee under s5H(1)(a) and accordingly is then able to claim Protection under s36(2)(a) of the Act.

2. Section 5J(1)(a) of the Act provides:

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…

3. The applicant sought to rely on the affidavit sworn by William John Markwell on 31 January 2019. Annexed to that affidavit is a transcript of the applicant’s entry interview conducted on his arrival in Australia on 13 August 2013 and a further transcript of the applicant’s interview before the delegate of the first respondent on 14 November 2016.

4. In essence, the applicant claims that the respondent did not consider part of the applicant’s claims, namely that:

   …the Applicant was a member of a particular social group, being a male Hazara Shias, whose occupation is driving between Kabul and Parwan.[21] 

   [21] First respondent’s outline of submissions filed 13 February 2019.

5. The applicant further argues that had this claim been considered by the IAA, the IAA should have found that the applicant had a well-founded fear of persecution and therefore met the requirements of section 36(2)(a) of the Act.

6. It was conceded by the applicant that this court is not able to engage in a merits review of the IAA’s decision. Rather, the role of this court is to determine whether the IAA’s decision is affected by jurisdictional error. The applicant submitted that the analysis it urges on this court does not constitute impermissible merits review.

7. The applicant rightly states that the approach that should be taken to the determination of what constitutes a Particular Social Group (“PSG”) was the subject of discussion in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; 71 ALJR 381; 142 ALR 331 (“Applicant A”), in which Brennan CJ posed a number of questions which need to be answered in determining what constitutes a PSG. However, those questions were posed in the context of the following statement made by his Honour at [21] of that decision:

   …for my part, I see no ground for holding that a characteristic must be ‘innate or unchangeable’ before it can distinguish a social group. If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status.  An attempt to confine the denotation of the term ‘a particular social group’ in order to restrict the protection accorded by the Convention would be warranted if it were assumed that the Convention was intended to impose minimal obligations on the receiving State but, if the object and purpose of the convention is the protection so far as possible of the equal enjoyment by every person of fundamental rights and freedoms, the term ‘a particular social group’ should be given a wide interpretation.  The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the ‘reason’ for persecution that it feared.[22]

   [22]ApplicantA v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; 71 ALJR 381; 142 ALR 331 at [12].

8. It was in this context that Brennan CJ went on to say:

   In my opinion, the appropriate way to apply the definition in the present case is to find the answer to a series of questions:

   (1)Does the putative refugee fear persecution?

   (2)Is the fear well-founded?

   (3)Is the feared persecution practised or likely to be practised because of a characteristic of the victims that is not common to the members of the society at large?

   (4)Is the persecution practised officially or is it officially tolerated or is the government of the country of the putative refugee’s nationality unable to control it?

   (5)Is the putative refugee unwilling to avail himself or herself of the protection of the country of his or her nationality?

   (6)Is that unwillingness due to the feared persecution?[23]

   [23] Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; 71 ALJR 381; 142 ALR 331 at [22].

9. The ‘definition’ to which these questions are addressed is the definition of the term ‘refugee’. So much is apparent from the paragraphs which precede those set out above. The reference to ‘definition’ in paragraph [22] of Brennan CJ’s judgment, is not, as seems to be suggested, a definition of ‘particular social group’. This is clear from paragraph [16] of Brennan CJ’s reasons where his Honour states:

   By the ordinary meaning of the words used, a ‘particular group’ is a group identifiable by any characteristic common to the members of the group and a ‘social group’ is a group the members of which possess some characteristic which distinguishes them from society at large. The characteristic may consist in any attribute…The persons possessing any such characteristic form a particular social group…in the definition of ‘refugee’, should the term ‘a particular social group’ be given some meaning more restricted than its words would ordinarily bear?[24]

   [24] For completeness I also note that Brennan CJ was in the minority in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225; 71 ALJR 381; 142 ALR 331.

10. Therefore, to the extent that counsel for the applicant has analysed whether the applicant’s claims respond to the questions posed by Brennan CJ in Applicant A, that does not, with respect, assist in determining whether or not the IAA’s decision is affected by jurisdictional error.

11. In any event, as a model litigant, counsel for the Minister quite properly identified that the alleged jurisdictional error in this case is a failure to review the IAA’s decision by failing to consider the applicant’s claims and issues arising from the review material before it as required by Part 7AA of the Act.

12. The IAA’s obligations were clearly summarised in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”) in which the Full Court of the Federal Court noted:

    17.By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.

    18.It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

    ·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    ·The Tribunal is only required to consider such claims where they are either:

    (a)     the subject of substantial clearly articulated argument, relying on established facts; or

    (b)     clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]). 

    ·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

    ...A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ). (Emphasis added.)

    ·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

    (a)     such a finding is not to be made lightly (NABE at [68]);

    (b)     the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    (c)     to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

    37.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

    (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

1. I accept the submissions put on behalf of the Minister that to the extent that the applicant seeks to argue the merits of the substantive application, it invites the court to engage in impermissible merits review. To that extent, it does not disclose any error on the part of the IAA.

2. Similarly, to the extent that the applicant argues that the IAA failed to consider part of the applicant’s claim, namely that he feared harm on the basis of being a Hazara Shia whose occupation was driving between Kabul and Parwan, this ground also fails.  It is evident from a fair reading of the IAA’s reasons for decision that this claim was in fact considered by the IAA.  In particular:

   a)At paragraph 30, the IAA considered the ‘risk to the applicant through general insecurity and criminality in the province including on the roads.’[25] It then went on to consider ‘whether his religion or ethnicity would play a factor on the roads’[26], having regard to country information which ‘does not indicate that Hazara Shia have recently been targeted on the roads or elsewhere in the province for reasons of their religion or ethnicity.’[27]

   b)At paragraph 32, the IAA noted that despite its concerns about the applicant’s evidence, it did accept that the ‘applicant was targeted in the past on the roads while working as a driver.’[28] It concluded that the applicant did not have any profile which ‘would put him at risk on the roads on return to the country. I am further satisfied that he would not face a chance or risk of harm on the basis of his religion or ethnicity on the roads in Parwan Province.’[29]

   c)Relevantly at paragraph 33, the IAA stated:

   …weighing all the information before me, I find there is no real chance of the applicant being seriously harmed on the basis of his religion, ethnicity or any other profile… I accept there are risks on the roads, but weighing all the information before me, again including his experience on the road and lack of any adverse profile, I am satisfied that if he returned to driving, the chance that he would be harmed in generalised or criminally motivated violence on the roads in and out of the province is remote.  Accordingly, I am satisfied there is not a real chance of him being seriously harmed for any of these reasons on his return to Afghanistan, whether separately or cumulatively.[30]

   [25] Court book page 137 at paragraph [30].

   [26] Court book page 137 at paragraph [30].

   [27] Court book page 137 at paragraph [30].

   [28] Court book page 138 at paragraph [32].

   [29] Court book page 138 at paragraph [32].

   [30] Court book page 138 at paragraph [33].

3. In the course of oral submissions, when asked to comment on these portions of the IAA’s reasons for decision, counsel for the applicant stated:

   …the second respondent … hasn’t really inferred that the applicant is a member of a PSG. There’s no mention of a PSG anywhere in the decision …

   …

   They haven’t used those words … he hasn’t been considered as a member of a group, it’s submitted …

   …the second respondent hasn’t considered the applicant’s assertion that the Taliban own the road.[31]

   [31] Transcript pages 9 to 11.

4. A fair reading of the IAA’s reasons for decision in the sense contemplated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 (“Wu Shan Liang”), make it clear that the IAA did consider the applicant’s claim that he feared persecution because of his membership of such a particular social group. 

5. To the extent that the applicant claims that the IAA failed to have regard to country information, it is well settled that the weight to be given to relevant country information is a matter for the IAA ‘as part of its fact finding function’.[32]  In any event, as noted by counsel for the Minister, the IAA considered and made reference to country information to which the applicant refers in his outline of argument.[33]

   [32] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [79].

   [33] The first respondent’s written submissions, page 7 at paragraph 22 and the footnote thereto.

6. Given the conclusions I have reached above, it is not necessary for me to consider the alternative arguments put on behalf of the Minister. 

7. For each of these reasons, the applicant’s ground of review is not made out.

Conclusion

1. As the applicant’s ground for review has not been made out, therefore the application should be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 13 June 2019