CVT15 v Minister for Immigration

[2016] FCCA 1349

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1349

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to address relevant material – whether the applicant had a genuine hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 476

Applicant: CVT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 478 of 2015

Judgment of: Judge Street

Hearing date: 26 May 2016

Date of Last Submission: 26 May 2016

Delivered at: Adelaide

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Dr Churches

Counsel for the First Respondent: Mr Prince

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. Leave to the applicant to amend the application to add as a fourth ground failure by the Tribunal to address relevant material that goes to the heart of the claims made by the applicant and the court dispenses with the need to file any amended application.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 478 of 2015

CVT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 November 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Afghanistan, and his claims were assessed against that country.

2. In summary, the applicant claimed to fear persecution from the Taliban, Daesh, also known as Islamic State or ISIS, other insurgent groups or Pashtuns or generally for reasons of his race being Hazari, his religion being Shia, his imputed political opinion against the Taliban, his support of the West and/or international community and/or international forces and/or the Afghan Government on account of his race being Hazari, his religion being Shia, his Pashi ethnicity and his origins from a particular area where Shojaee originates from, his protracted absence from Afghanistan, his presence in Australia and his application for asylum in Australia, his membership of two particular social groups: Pashi tribe members and returnees from Western countries.

3. The applicant arrived in Australia by boat on 28 June 2012 and was then taken to Christmas Island. The applicant was interviewed on 27 July 2012. On 9 January 2014, a delegate found that he was not satisfied that the applicant met the requirements of s.36(2)(a) of the Migration Act 1958.  On 17 January 2014, the applicant applied for review.  By letter dated 28 May 2015, the applicant was invited to attend a hearing on 22 June 2015.  The applicant attended on that date to give evidence and present arguments and was assisted by his migration representative. 

4. Prior to the hearing on 22 June, detailed submissions were provided dated 16 June 2015, comprising 40 pages and an annexed article.  It is apparent from the Tribunal’s reasons that the Tribunal took into account those submissions.  Following the hearing, further submissions dated 26 June 2015 were provided to the Tribunal, and again, it is apparent from the Tribunal’s reasons that those submissions were taken into account. 

5. On 18 September 2015, the Tribunal forwarded to the applicant for comment the most recent country report and thematic report from the Australia Department of Foreign Affairs and Trade dated 18 September.  A response was received to those reports dated 9 October 2015, which, again, was referred to in the Tribunal’s submissions and taken into account.

6. The Tribunal found that the applicant did not have a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now, or reasonably in the foreseeable future. The Tribunal did not accept that there were substantial grounds for leaving as a necessary and a reasonable or foreseeable consequence of the applicant being removed from Australia, that there is a real risk that he will suffer significant harm, as identified in s.36(2)(a) of the Migration Act 1958. 

7. It was in those circumstances the Tribunal found that the criteria under s.36(2) of the Migration Act 1958 for a protection visa was not satisfied, and affirmed the decision of the delegate.

8. The original application filed by the applicant identified three grounds.  With the leave of the Court, a fourth ground was added, and the need for filing any amended application was dispensed with. 

9. The fourth ground is as follows:

   4. Failure by the Tribunal to address relevant material that goes to the heart of the claims made by the applicant

10. Dr Churches, counsel for the applicant, confirmed that grounds 1, 2 and 3 were no longer pressed and were abandoned.  In relation to ground 4, Dr Churches identified the applicant’s main claims of fear by reason of being Hazari, being a Shia Muslim and by reason of being a Hazari returnee from a Western country.  Dr Churches took the Court to material which he says should have been the subject of express findings by the Tribunal in relation to the content of those reports. 

11. Initially, Dr Churches advanced that there were two reports that were not referred to by the Tribunal, being the Radio Free Europe report found at p.203-204 of the court book and the second being a report by Mr Glendenning of 2014 at p.209 of the court book.  Mr Prince, counsel for the first respondent, identified that both documents were, in fact, referred to on a careful reading of the Tribunal’s reasons at particular paragraphs.  That proposition was accepted by Dr Churches.

12. Moreover, it is apparent that the Tribunal raised with the applicant expressly country information in relation to the targeting of Hazaris.  The Tribunal found that the applicant was not a witness of truth and made adverse findings in relation to the applicant’s claims.  The second report referred to by Dr Churches, which it was initially suggested was not referred to at all, was the Glendenning report of 2014 at p.209 of the court book. That report identified the targeting of Hazaris. That report was referred to by the Tribunal at para.17, second sentence.

13. Dr Churches submitted that certain other material should have been the subject of express findings. Reference was made to the UNHCR report of 2013, which is a document referred to in the submissions on 16 June 2015, in the context of being relevant to the dangers in respect of Hazaris returning from Western countries.  It is apparent that the Tribunal referred to the UNHCR report in the course of its reasons in relation to the applicant’s claims.

14. The other material referred to by Dr Churches was the DFAT report of March 2015, in which reference was made to certain Hazaris being killed, and in respect of which Dr Churches pointed out that there is only limited reference to the killing of Hazari persons by reference to that report.  Dr Churches contended that the material to which it referred was of a kind that was fundamental to the applicant’s claims, and had to be the subject of express findings by the Tribunal. 

15. The Tribunal’s reasons were a careful and thorough analysis of the applicant’s claims, and contained a detailed summary of the submissions advanced, and showed careful attention to the claims advanced by the applicant and, in particular, the Tribunal member took care to put to the applicant country information, that Hazara districts of a particular province, or including another particular location, remained largely protected from violence, and continued to enjoy good security.  It was put to the applicant by the Tribunal that the Department assessed that there was a low level of violence for Hazaris in these areas, and that these districts enjoyed relatively good access to services.

16. The Tribunal identified the applicant’s response, and put to the applicant that the Australian Department of Foreign Affairs and Trade assessed that there was only a low risk of violence for Hazaris in the particular area.  The Tribunal member put to the applicant that the Australian Department of Foreign Affairs and Trade had said that the most frequently used road between Ghazni City and another location passed through the relevant district, and that it was considered secure. 

17. The Tribunal put to the applicant that local residents with ties to the province and knowledge of the areas, including Hazaris, were generally able to travel between Ghazni City and Hazari districts without incident, and that thousands of vehicles used the road daily.  The Tribunal put to the applicant that the European Asylum Support Office, in its report on the security situation in Afghanistan, published in January 2015, referred to studies suggesting that, following the withdrawal of the international forces, insurgent groups had made territory gains, but they had been unable to capture major towns.

18. It was put to the applicant by the Tribunal that the violence in Kabul most targeted government officials, with the prime targets being security personnel and their vehicles.  It was put to the applicant that the United Nations Office for Coordination of Humanitarian Affairs had identified the risk to a civilian in Kabul province was relevantly low.  It was put to the applicant that the Australian Department of Foreign Affairs of trade assessed that there were generally options available for members of ethnic and religious minorities to be able to relocate to relative safety in Kabul, and that it assessed that, because of Kabul’s size and diversity, returnees would be unlikely to be discriminated against, or subject to violence on the basis of their race or religion.

19. The Tribunal noted what was raised by the applicant’s representatives, and put to the applicant that the Australian Department of Foreign Affairs and Trade assessed that Shia/Sunni sectarian violence was infrequent in Afghanistan.  The Tribunal put to the applicant that the Department had said that men of working age were more likely to be able to return and integrate successfully in Kabul, and that the situation for returnees to Kabul who were provided with integration assistance by IMO tended to be more favourable than for international, internally displaced persons who did not receive this level of assistance.

20. The Tribunal member put to the applicant the country information available indicated that people moved back and forth between Iraq and Afghanistan all the time.  The Tribunal put to the applicant that the Australian Department of Foreign Affairs and Trade had advised that people to whom it had spoken did not believe that Hazaris would be targeted because they had sought asylum in the West.

21. The Tribunal put to the applicant that the Department had assessed that there was no evidence to indicate that low-profile individuals were subjected to discrimination or violence as a result of them having spent time in Western countries. 

22. The Tribunal gave detailed reasons in relation to the adverse finding of credit in relation to the applicant, and those adverse findings were open.  It is clear that the applicant had a genuine hearing, and that the Tribunal followed a fair process in compliance with its statutory obligations in the conduct of the hearing.  The reasons of the Tribunal reflect a careful evaluation of the submissions advanced by the representatives on behalf of the applicant. 

23. I do not accept that the references to the material identified by Dr Churches was fundamental or material to the applicant’s claims.  I do not accept that the Tribunal failed to have regard to any of the material referred to.  I find that the Tribunal took into account the whole of the submissions advanced on behalf of the applicant.  It was not necessary for the Tribunal to make findings of fact in relation to the whole of the material put before it, nor was it necessary for the Tribunal to refer to each item of the information in respect of killings of Hazari advanced on behalf of the applicant.  Ground 4 fails to make out any jurisdictional error.  The application is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 June 2016