CVP18 v Minister for Immigration
[2020] FCCA 1845
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVP18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1845 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s fears found not to be well-founded – applicant’s family living in Pakistan – whether the Authority failed to consider a claim concerning road travel necessary to reach his family – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CA, 473CB, 473CC, 473DD, 473EA |
| Cases cited: BVD17 v Minister for Immigration (2019) 373 ALR 196 CAQ17 v Minister for Immigration [2019] FCAFC 203 CVS16 v Minister for Immigration [2018] FCA 951 DNA17 v Minister for Immigration [2019] FCAFC 146 DNQ18 v Minister for Immigration [2020] FCAFC 72 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 EVA17 v Minister for Immigration [2018] FCAFC 214 FBR18 v Minister for Immigration [2019] FCA 1620 Hossain v Minister for Immigration (2018) 264 CLR 123 Minister for Immigration v CLV16 (2018) 260 FCR 482 Minister for Immigration v SZMTA (2019) 264 CLR 421 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 SZSSC v Minister for Immigration [2014] FCA 863 WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | CVP18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 291 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 June 2020 |
| Delivered at: | Sydney, by telephone to Perth |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Glenister |
| Solicitors for the Applicant: | William Gerard Legal Pty Ltd |
| Solicitors for the Respondents: | Ms M Jackson of Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 27 April 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 291 of 2018
| CVP18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 27 April 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Afghanistan who was born in 1982.[1]
[1] Court Book “CB” 1
On 25 April 2013, the applicant arrived at Christmas Island as an unauthorised maritime arrival.[2]
[2] CB 115
On 22 December 2016, the applicant applied to the Minister’s Department for a protection visa.[3]
[3] CB 31
On 4 July 2017, the delegate refused to grant a protection visa to the applicant.[4]
[4] CB 111
The matter was then referred to the Authority in accordance with s.473CA of the Migration Act 1958 (Cth) (Migration Act).
On 27 April 2018, the Authority affirmed the decision not to grant the applicant a protection visa.[5]
[5] CB 186
On 31 May 2018, the applicant applied to this Court for judicial review of the Authority’s decision.
On 13 July 2018, a Registrar made orders programming this matter to hearing.
Protection claims
In his entry interview, the applicant declared he was of Pashto ethnicity and Sunni religion, and that he was threatened by the Taliban because of his work with his father-in-law delivering concrete in support of the Americans.[6]
[6] CB 9, 15-16
The applicant provided a statutory declaration with his application for a protection visa[7] in which he provided further details concerning the death of his father and clarified that his father (not father-in-law) had been working as a truck driver delivering building materials. The applicant outlined threatening phone calls which his father had received from the Taliban in which they told him to stop assisting the Afghan government or else he would be killed. The applicant explained that one day when his father was returning home from work, he was forced from his truck and shot. The applicant fled Afghanistan in 2013 because he was scared that he would be targeted because of his father, and also claimed to fear harm because of having fled to Australia.
[7] CB 73-76
The delegate accepted the applicant’s identity and that his wife and children resided in Pakistan.[8] The delegate also accepted that the applicant’s father was threatened and killed by the Taliban in 2011. However, the delegate found that the applicant had never been threatened directly, the applicant had continued to reside in the area for another one to one and a half years without experiencing issues, and he had not undertaken any further work which would associate him with the Afghan government. The delegate did not accept that his father’s work, which ceased more than six years ago, would cause the applicant to be imputed as a supporter or to be affiliated with the Afghan government.[9] The delegate concluded he would not face a real chance or real risk of harm on the basis of his imputed political opinion or as a failed asylum seeker from a Western country.
[8] CB 115-120
[9] CB 117-118
The applicant’s representative provided a submission to the Authority which asserted errors in the interpreting provided at interview with the delegate and provided new country information, but largely repeated the applicant’s claims for protection.[10]
[10] CB 146-151
The applicant’s claims were summarised by the Authority as follows:[11]
a)the applicant occasionally worked as his father’s offsider between 2005 and 2011 delivering building materials to sites where government security checkpoints were being constructed in Kandahar province. His father was killed in 2011 by the Taliban while he was driving on the road between the Afghan border and Kandahar city. His father had received telephone threats from the Taliban warning him and the applicant to stop working for the Afghan government or they would be killed. Following his father’s death, the applicant remained in the village but maintained a low profile;
b)in approximately March 2013, the applicant took his family to Pakistan for safety reasons after his uncle and brother-in-law made arrangements for his travel to Australia;
c)the applicant fears being killed by the Taliban on return because of his family association and support of the Afghan government through his father’s former employment. The applicant also fears harm because news of his residence in Australia would have come to the Taliban’s attention and he will be regarded as an infidel. He also fears the government will punish him for leaving Afghanistan.
Authority decision
[11] CB 189-90, [8]
Consideration of new information
The Authority noted that it had regard to the material referred to it by the Secretary under s.473CB of the Migration Act.[12]
[12] CB 187, [3]
On 7 November 2017, the Authority received a submission from the applicant’s representative which refuted several of the delegate’s findings. The Authority considered that the matters raised in the submissions were arguments not information. The Authority considered that some documents cited in the submission were before the delegate and were hence not new information.[13]
[13] CB 187, [4]
The Authority received a revised transcript of the applicant’s interview before the delegate. The applicant claimed to have become aware of discrepancies in the transcript which was before the delegate after the delegate’s decision. The applicant then commissioned the revised transcript. The Authority was satisfied that the revised transcript could not have been provided to the delegate. The Authority considered that the revised transcript was a more eloquent transcript that the transcript that was before the delegate but did not find that the applicant’s narrative was disrupted or that it lead to the delegate misunderstanding significant parts of the applicant’s claims. Nonetheless, the Authority was satisfied that there were exceptional circumstances that justify considering the revised transcript as new information.[14]
[14] CB 187, [5]
The Authority set out the specific documents and information contained in the submission and the reasons whether there were exceptional circumstances to justify considering any new information.[15] The Authority made the following findings:[16]
a)country information referred to in a 2016 decision of the Administrative Appeals Tribunal. The Authority considered that this material could have been provided to the delegate and was dated in any event. The Authority considered the documents to be of limited probative value and was not satisfied that there are exceptional circumstances which would justify taking them into account;
b)excerpts from the United Nations High Commissioner for Refugees guidelines. The Authority considered this information to be relevant and was satisfied that there were exceptional circumstances which justified taking it into account;
c)an excerpt from a 2016 Authority decision. The Authority considered that the decision was of limited corroborative value to the applicant’s circumstances (given it related to another applicant who was from a different district of the applicant) and that it could have been provided to the delegate. The Authority was not satisfied that there were exceptional circumstances which justified taking it into account;
d)hyperlinks to media articles which report of incidents in Kabul. The articles were not provided in accordance with the Authority practice directions and were not taken into account by the Authority;
e)excerpt from a media article relating to an attack in Kabul. The Authority considered that the attack was referred to in the country information before the delegate and was not satisfied that the article provided any further key information. The Authority was not satisfied that there were exceptional circumstances which justified taking the article into account;
f)excerpt from a media article relating to an attack on tourists in Herat. The Authority considered that the applicant is not a tourist and Herat is not a province that is relevant to the applicant’s claims. The Authority was not satisfied that there were exceptional circumstances which justified taking the article into account;
g)a list of four attacks that are said to have occurred in 2017. Copies of source documents were not provided by the applicant. The documents were not provided in accordance with the Authority practice directions and were not taken into account by the Authority.
[15] CB 187-188, [5]-[6]
[16] CB 188-89, [6]
The Authority also noted that it had obtained updated country information which was not before the delegate, and stated that it was satisfied that there were exceptional circumstances for considering the information.[17]
[17] CB 189, [7]
Consideration of claims
The Authority considered the applicant’s claims and evidence and made the following findings:
a)in relation to the applicant’s father, the Authority accepted that he was a truck driver and that the applicant worked with his father over a period of six years.[18] It accepted that the father received threats from the Taliban and was targeted and killed whilst driving his truck for work.[19] Given he worked over a significant period of time, the Taliban could have become aware of or observed the applicant working with his father. The Authority accepted that the applicant was fearful of being killed following his father’s death;[20]
b)however, the Authority was not satisfied that the applicant continued to be of interest to the Taliban after his father’s death or at the time of his departure from Afghanistan for reasons of his former employment and family association. The Authority noted that the applicant had complied with the Taliban’s demands and had not received any threats despite continuing to live in the same village for approximately two years. While the Authority accepted that the applicant was fearful of the Taliban, it was not satisfied that the applicant was of interest to the Taliban in his home area;[21]
c)the Authority noted that the applicant himself had not worked for any government agency and did not engage in any employment with government links. The Authority then stated that it was not satisfied that after a period of over six years the applicant would be pursued or harmed by the Taliban. The Authority further stated that it was not satisfied that there was a real chance of the applicant facing any harm if he returned to his home area due to an imputed political opinion arising from his father’s former employment, his own former employment or due to his family association with his father;[22]
d)the Authority noted that the applicant was born in a named location (home town), had lived there all of his life and had some family who still resided there. The Authority stated that it was not satisfied that the applicant would be targeted on his return because he was perceived to be an infidel or pro-western due to his residence in a western country. The Authority further found that it was satisfied that the applicant would not be readily identifiable as having lived in a western country;[23]
e)having regard to relevant country information and reports, the Authority stated that the applicant’s home town was not mentioned as either a contested district or an area under Taliban control. While the Authority accepted that there had been some incidents in the applicant’s home town and some attacks in Kandahar district, the primary targets of the Taliban were groups including the military, police, government officials and people associated with the international community. The Authority stated that it was not satisfied that the applicant faced a real chance of harm in the foreseeable future from the Taliban or other insurgent groups due to the general security situation in his home town or the Kandahar district.[24]
[18] CB 190, [10]
[19] CB 191, [13]
[20] CB 191, [14]
[21] CB 191, [15]
[22] CB 192-193, [20]
[23] CB 194, [24]
[24] CB 194, [26] and CB 195, [28]
The Authority concluded by stating that it was not satisfied that there was a real chance of the applicant being harmed due to his or his father’s former employment, his family associations, as a returnee from a western country, as a returning asylum seeker or due to generalised violence or for any other reason upon his return to his home town. The Authority stated that the applicant did not meet the criteria in s.36(2)(a) of the Migration Act.[25]
[25] CB 196, [30]-[31]
For similar reasons, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm, and therefore did not meet the criteria in s.36(2)(aa) of the Migration Act.[26]
[26] CB 197, [36]
The current proceedings
These proceedings began with a show cause application filed on 31 May 2018. The applicant now relies upon an amended application filed on 11 May 2020. There is one particularised ground in the application as amended:
1.The second respondent made a jurisdictional error by failing to consider whether the applicant met the criterion under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) for the grant of a protection visa on the basis of his claim that he would have to travel from Afghanistan to Pakistan by road to ‘get to his family’.
Particulars
a. The applicant claimed that if he were deported, he ‘will be travelling to Pakistan illegally to get to his family’ and would face harm due to ‘[t]he road to Pakistan [being] very dangerous’ (Pakistan claim) (CB 148).
b. The second respondent considered country information about the risk of harm to travellers who used the roads in Afghanistan (CB 195 [29]).
c. The second respondent found that ‘[t]here are risks on the roads from insurgents and criminal violence for all ethnicities, however given the applicant would be making a single journey to Kandahar and his lack of any profile either as a returnee from a western country or due to his or his father’s former employment, I consider the chance of the applicant being seriously harmed while returning to his home area to be remote’ … (CB 195-6, [29]).
d. The second respondent failed to consider the Pakistan claim.
The only evidence I have before me is the court book filed on 3 August 2018. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 19 June 2020.
Consideration
Applicant’s contentions
By s.473CC(1) of the Migration Act, the Authority is required to review a referred decision. This review: [27]
is not concerned with the correction of error on the part of the Minister or delegate but is … a de novo consideration of the merits of the decision that has been referred to the Authority. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
[27] Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at [17]
Properly understood, a failure by the Authority to consider a claim, representation, contention or submission, such as the Pakistan claim, is a failure by the Authority to complete the task required of it under s.473CC(1) of the Migration Act.[28] That failure will constitute jurisdictional error if it is material to the outcome of the review.[29]
[28] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [55], [63]; EVA17 v Minister for Immigration [2018] FCAFC 214 at [36]
[29] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [45]; DNQ18 v Minister for Immigration [2020] FCAFC 72 at [60]
Whether the Authority failed to consider the Pakistan claim is a question of fact which must be decided by the drawing of inferences. Where there has been a failure to expressly deal with an issue in reasons for decision, an inference may be drawn that there has been a failure to consider that issue. This inference is strengthened where an issue raised by contentions made by an applicant, if resolved one way, would be dispositive of the review of a delegate’s decision.[30]
[30] WAEE v Minister for Immigration (2003) 236 FCR 593 at [47]
In this case, the Authority made no reference in its reasons for decision to the Pakistan claim. The Authority also made a finding contrary to the Pakistan claim, namely that the Applicant would be undertaking a single trip from Kabul to Kandahar. The applicant submits that the inference that the Authority failed to consider the Pakistan claim should be drawn on these facts alone.
The Authority accepted that there was a risk of serious or significant harm to the applicant on the roads of Afghanistan. It found that this risk did not amount to a “real chance” or a “real risk” on the basis of two findings, the fact that the applicant would be taking a single trip and the applicant’s profile. The Pakistan claim is said to destroy one of those two bases and logically has the effect of increasing the likelihood of the applicant suffering serious or significant harm on the roads of Afghanistan. The assessment of that likelihood would of course be a matter for the Authority, but it is not “fanciful or improbable”[31] that it would be resolved in favour of the applicant. Had it been resolved in favour of the applicant, it could have satisfied the Authority that the applicant met the criterion for the visa under either s.36(2)(a) or s.36(2)(aa) of the Migration Act and, therefore, could have been dispositive of the review. This is said to provide further support for the inference that the Authority failed to consider the Pakistan claim and also is said to establish the materiality of that error.
[31] DNQ18 at [60]
Minister’s contentions
To resolve the applicant’s ground of review, the Minister submits that the Court should undertake a three step analysis, as did the Full Federal Court in DNA17 v Minister for Immigration:[32]
a)was the submission that “the applicant would have to travel from Afghanistan to Pakistan by road to get to his family” new information within the meaning of s.473DD of the Migration Act?
b)if the answer to (a) is yes, did the Authority err in failing to have regard to a submission of substance made by the applicant?
c)if the answer to (b) is yes, was the error material to the Authority’s decision and thereby a jurisdictional error?
[32] [2019] FCAFC 146
Was the purported claim new information?
The applicant’s written submissions to this Court do not grapple with whether the purported claim was new information. In Plaintiff M174[33] the High Court determined that the expression “new information” in s.473DD is limited to “information” in the ordinary sense of a communication of knowledge about some particular fact, subject or event. A submission that an applicant actually holds a fear of harm, which was not agitated to the delegate, will amount to “new information”, because it contains a new assertion of fact.[34]
[33] at [24] per Gageler, Keane and Nettle JJ, with whom Gordon J agreed at [78] and Edelman J agreed at [100]
[34] FBR18 v Minister for Immigration [2019] FCA 1620 at [66]-[79] per Farrell J, cited with approval in CAQ17 v Minister for Immigration [2019] FCAFC 203 at [107] (Derrington and Steward JJ, Mortimer J agreeing)
The Minister states it cannot be in dispute that the claim was made for the first time in the 7 November 2017 submissions to the Authority.[35] The purported claim was new information within the meaning of s.473DC. It therefore fell to be considered against the provisions in s.473DD.
[35] CB 148
As the Full Federal Court observed in CLV16[36] at [74], while difficulties may be encountered in applying s.473DD to a written submission provided by an applicant to the Authority which contains a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material, it is nevertheless for the Authority to “sort the wheat from the chaff”.[37]
[36] Minister for Immigration v CLV16 (2018) 260 FCR 482
[37] see also DNA17 at [38]
The 7 November 2017 submission[38] contained a mixture of argument and new information, which the Authority appeared to appreciate.[39] The Authority understood that relocation and “safety on the roads” were not issues which were before the delegate, and evaluated those pieces of country information through that lens.[40]
[38] at CB 146-151
[39] See CB 187-188, [4]-[6]
[40] see the second and fourth dot points at CB 188-189, discussing the UNHCR guidelines and the media articles reporting on an April 2016 attack
The Authority’s reasons in respect of s.473DD do not contain a line by line analysis of the 7 November 2017 submission, and it cannot be criticised in this respect.[41] Like CAQ17, and as developed at [38]-[43] below, the 7 November submissions to the Authority were “so badly drawn and so poorly framed” that the Minister submits it is not possible to give the reference to “the road to Pakistan is very dangerous” any coherent meaning. However, it can be inferred from its reasoning at [6] that that the Authority considered that “the applicant would have to travel from Afghanistan to Pakistan by road to get to his family” was new information.
[41] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [24]–[25]; s.473EA does not require the Authority to provide reasons for procedural decisions, but only for “the decision of the Authority on the review”: BVD17 at [16], [40]; see also CVS16 at [28]-[29]
The applicant has not identified any error in respect of the Authority’s new information findings. If the Court finds that the Pakistan claim (as defined by the applicant) was new information, then his ground of review could be dismissed on that basis.
No error in failing to have regard to a submission of substance
The Minister contends that in any event the applicant did not make any substantial and clearly articulated argument which required consideration by the Authority.[42] The reasoning in Dranichnikov has been applied by the Full Federal Court in the context of new information in Part 7AA.[43]
[42] Also see SZSSC v Minister for Immigration [2014] FCA 863 at [78]-[82]
[43] DNA17 at [46]-[48]
Contrary to the applicant’s argument, there was no freestanding claim advanced in the 7 November 2017 submission that the applicant would face danger in travelling from Afghanistan to Pakistan by road to get to his family. The sentence on which the applicant relies, at the last two lines of CB 148, must be read in context. The submission advanced various arguments about relocation to Kabul, Mazar-e-Sharif and Pakistan (even though the latter does not legally fall within the concept of internal relocation), as well as arguments about the safety of travel on the roads in Afghanistan including the road from Kabul to Kandahar, the latter being his home area. The submissions attached country information, most of which was rejected by the Authority, but which predominantly related to Hazara people (the applicant is ethnically Pashtun). The submissions do however make it clear that the feared agent of harm on the roads was the Taliban.
The Minister submits that the submission about the applicant “going to his family” in Pakistan was not a submission of substance. It was advanced in the context of relocation, and at its highest could be understood as one factor which might have affected the reasonableness of relocation. For example, the submissions about relocation appear premised on the applicant relocating within Afghanistan with his wife and dependent children.
The submission was also internally inconsistent, in that it variously suggested the applicant would be at risk of harm in Kabul itself, when travelling from Kabul to Kandahar, when in Mazar-e-Sharif itself, or “on the road to Pakistan”. There are no specifics provided addressing what road/area the applicant feared harm, or what route the applicant would take (i.e. from Kabul, from Kandahar?) which was said to be particularly dangerous. Nor was there specific country information cited in support of this aspect of the applicant’s claim.
Further, the Minister submits that the submission was unsupported by facts. It is true that the applicant claimed that his family fled to Pakistan for their safety, a claim which was accepted by the Authority.[44] However, at no point did the applicant suggest that he intended to reunite with his family in Quetta. As mentioned above, the submission about relocation appeared to be based on the premise that the applicant’s wife and children were with him in Afghanistan. This is inconsistent with a claim that he would “go to his family”, which is suggestive of one-way travel and then, perhaps, residence in Pakistan.
[44] CB 75, [7] and CB 190, [8], dot point 4
It follows, in the Minister’s submission, that the Authority was not required to consider the claim, as it was not expressly made and did not arise clearly on the materials before it.[45] The Authority could not err by failing to consider a submission which is not substantial, in the sense that it is capable of altering the decision.[46]
[45] NABE at [61]
[46] DNA17 at [60] citing Hossain v Minister for Immigration (2018) 264 CLR 123 at [29]‑[31] per Kiefel CJ, Gageler and Keane JJ; SZMTA at [45] per Bell, Gageler and Keane JJ
The Authority “dealt with the claim in any event”, and any error was not material
In the event that the above contentions are not accepted in that the Court finds that a claim was advanced, the Minister submits that the Authority dealt with it. The Full Federal Court observed in similar circumstances in CAQ17 that the Authority did not err by nevertheless considering a claim, even after it had determined that the new claim amounted to new information and that there were no exceptional circumstances justifying its reception.[47]
[47] at [125]
As set out above, the 7 November 2017 submissions centred on the applicant’s alleged fear of harm from the Taliban. The Authority had rejected the applicant’s individual claims to be of interest to the Taliban.[48] It then examined at [28] the security situation in Kandahar, including the Taliban presence in that province, and concluded that the applicant would not face a real chance of harm in the foreseeable future from the Taliban or other insurgent groups due to the general security situation in his home town and the Kandahar district. Those findings are said to have been enough to subsume any “vague claims” which had been advanced that the applicant “risks harm from the Taliban and local insurgents along these routes to Pakistan”.
[48] see CB 194-195, [26]
Additionally, the Authority specifically considered country information regarding safety on the roads in Afghanistan. That information included the 2016 DFAT report which indicated that “Pashtun passengers are less likely to be selected for kidnapping or violence, partly due to the risk of inter-tribal violence and retribution”.[49] The Authority then found at [29] that:
[t]here are risks on the roads from insurgents and criminal violence for all ethnicities, however given the applicant would be making a single journey to Kandahar and his lack of any profile either as a returnee from a western country or due to his or his father’s former employment, I consider the chance of the applicant being seriously harmed while returning to his home area to be remote.
[49] CB 195-196, [29]
The Minister submits that, contrary to the applicant’s submissions, this finding disposed of any claim about travel on the roads. The Authority’s findings are said to contain an implicit rejection of the factual premise on which any such claim rests, being that he would travel to Pakistan to get to his family. The only relevant travel within Afghanistan was that required to access his home region, being the road journey from Kabul to Kandahar.
Resolution
The applicant provided a statutory declaration with his application for a protection visa[50] in which he provided details concerning the death of his father and clarified that his father (not father-in-law) had been working as a truck driver delivering building materials. The applicant outlined the threatening phone calls which his father had received from the Taliban, in which they told him to stop assisting the Afghan government or else he would be killed. The applicant explained that one day when his father was returning home from work, he was forced from his truck and shot. The applicant fled Afghanistan in 2013 because he was scared that he would be targeted because of his father, and also claimed to fear harm because he fled Afghanistan for Australia.
[50] CB 73-76
The delegate accepted the applicant’s identity and that his wife and children resided in Pakistan.[51] The delegate also accepted that the applicant’s father was threatened and killed by the Taliban in 2011. However, the delegate found that the applicant: had never been threatened directly; had continued to reside in the area for another one to one and a half years without experiencing issues; and had not undertaken any further work which would associate him with the Afghan government. The delegate did not accept that the applicant’s father’s work, which ceased more than six years ago, would cause the applicant to be imputed as a supporter or to be affiliated with the Afghan government.[52] The delegate concluded he would not face a real chance or real risk of harm on the basis of his imputed political opinion, or as a failed asylum seeker from a Western country.
[51] CB 115-120
[52] CB 117-118
The applicant’s representative provided a submission to the Authority which: asserted errors in the interpreting provided at the interview; provided new country information; and, in the most part, repeated the applicant’s claims for protection.[53] Within that submission, and importantly in the context of arguments advanced about relocation, the following representations appear:[54]
[53] CB 146-151
[54] CB 148-149
Relocation
Due to the significant errors above, the delegate did not consider reasonableness of relocation. The applicant has 4 young children ages from 5-10 and a wife who are all dependent on him. The applicant has no particular skill to find job in Kabul or Masar-e-Sharif. He has no education, no relatives in Kabul or Masar and has no money.
It would be unreasonable to suggest that the applicant can relocate to another part of Afghanistan without endangering himself and his family and without severe hardship.
Dangerous route
The applicant’s family have relocated to Pakistan and if the applicant is deported, the applicant will be travelling to Pakistan illegally to get to his family. The road to Pakistan is very dangerous. The client risks harm from the Taliban and local insurgents along these routes to Pakistan. He risks being killed because of his political belief or at the minimum he risks harm as a returnee from the western world.
He also faces risks of harm as a returnee from a western country when he travels on road from Kabul to Kandahar.
Relocation Country information
It will be most unreasonable to expect the client to relocate to anywhere in Afghanistan. The country information on relocation is discussed below.
DFAT in its report quoted the UNHCR 2016 guideline which states as follows;
[…]
The applicant has a wife and 4 young children living in Pakistan. He would not be able to support himself. The security situation in Kabul is poor and the Taliban has successfully carried out attacks on targets there. Reports suggesting that Kabul is safe are taken out of context: it is only relatively safer than other parts of Afghanistan but the security situation there is deteriorating. This is especially so now that Islamic state has a presence there. This generalised violence renders it unreasonable for the applicant to relocate there, even if it was accepted that he would not be targeted there.
The client’s mannerisms, language, dressing and accent will be different from other Afghanis and he has a high chance of encountering the Taliban while travelling on the road in Afghanistan. These factors including the fact that he is considered to be a returnee from the West will enhance his profile.
Country information states that there are network of informers, who provide information about the identity of travellers to the Taliban. The fact that the client has been away from his village in Kandahar for so long, will be easily known by the villagers. The information about returnees is likely to travel fast, as noted by the UNHCR in relation to internal relocation: “even in a city like Kabul, which is divided into neighbourhoods (gozars) where people tend to know each other, the risk remains, as news about a person arriving from elsewhere in the country or abroad may reach potential agents of persecution.”
Based upon the applicant’s individual circumstances and the country information, the applicant in returning to Afghanistan faces a real chance of serious harm in the reasonably foreseeable future at the hands of the Taliban and other militants while travelling to his home area for reasons of his imputed political opinion in that he will be imputed to be anti-Taliban or a pro-government opinion and that the reason for his persecution is his membership of a particular social group as returnee to Afghanistan. The client would not be able to completely conceal his association with Australia and his family from Pakistan in order to reduce his chance of facing serious harm.
The Minister contends that the applicant’s submission about travel to Pakistan was advanced as an impediment to relocation. The Minister accepts that this was a claim in that it was raised for the first time before the Authority.
The Minister further accepts that the Authority did not recognise the travel claim as new information. It is common ground that the claim is new information.
The Authority dealt with the issue of the risk of travel in the following way at [29] of its reasons:[55]
Most returnees from western countries are almost exclusively returned to Kabul. Country information indicates that the Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common with the main targets being people who appear wealthy or who are associated with the government or the international community in attacks that can include kidnapping for ransom.[56] DFAT in 2016 indicated that Pashtun passengers are less likely to be selected for kidnapping or violence, partly due to the risk of inter-tribal violence and retribution. Both the 2016 and 2017 DFAT reports indicate that although no ethnic group is immune from kidnappings, Hazaras travelling by road are at greater risk than other ethnic groups and remain likely to be selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped.[57] There are risks on the roads from insurgents and criminal violence for all ethnicities, however given the applicant would be making a single journey to Kandahar and his lack of any profile either as a returnee from a western country or due to his or his father’s former employment, I consider the chance of the applicant being seriously harmed while returning to his home area to be remote. I also note Kandahar has an international airport[58] which is in Dand/Kandahar district and accepts flights from Kabul and international locations.
[55] CB 195-196
[56] DFAT, "Thematic Report Hazaras in Afghanistan 2015-16 update", 8 February 2016, CIS38A8012186, 2.17, 2.26-2.27, 2.32-2.33
[57] Ibid, 2.31-2.33; DFAT, “Hazaras in Afghanistan”, 18 September 0217, CISEDB50AD5681,
[58] EASO, “EASO Country of Origin Information Report Afghanistan Security Situation November 2016”, 1 November 2016, CIS38A80122597
The Minister asserts that the Authority’s reasons concerning the risk on the road from Kabul to Kandahar are responsive to the applicant’s claim under the heading “Dangerous route” in his submission to the Authority. The applicant does not suggest otherwise.
Accepting that, the Authority’s silence on the issue of travel to Pakistan is curious. The Minister contends that I should infer that the claim was rejected. I am unwilling to do so, having regard to the caution advised by the High Court in WAEE. It is, in my view, not plausible that the Authority would choose to deal expressly with the claim about the road from Kabul to Kandahar but purposely remain silent about the claim in relation to the road to Pakistan.
Neither am I willing to accept the Minister’s contention that the claim about the road to Pakistan was not clearly articulated based on established facts. It was an established fact that the applicant’s family had relocated to Pakistan. Prior to the review, the applicant had made no claim in relation to travel to the location of his family. He did so, however, in the submission to the Authority. It is not clear whether the applicant claimed that he would try to join his family in Pakistan, or that he would visit them from time to time, or that he would seek to bring them to Afghanistan. Frankly, it is most doubtful that the applicant could have been specific on those points, without knowing whether he would be returning to Afghanistan, and if so where, and following discussion with his family. The applicant assumed, incorrectly, that the Authority would not find that he would be returning to his home town in Afghanistan but that it would find he could relocate to Kabul or Mazar-e-Sharef. What is clear is that the applicant was claiming that if he returned to Afghanistan he would seek to resume at least contact with his family in Pakistan. That claim needed to be dealt with.
The Authority erred in two respects. First, it failed to recognise the claim as new information and deal with it in accordance with s.473DD. Secondly, if the Authority was satisfied that it should deal with the new information notwithstanding s.473DD it failed to deal with it in its reasons. At least the second of these errors goes to jurisdiction.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. The applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 July 2020
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