CVT15 v Minister for Immigration and Border Protection
[2016] FCA 1379
•18 November 2016
FEDERAL COURT OF AUSTRALIA
CVT15 v Minister for Immigration and Border Protection [2016] FCA 1379
Appeal from: CVT15 v Minister for Immigration & Anor [2016] FCCA 1349 File number: SAD 174 of 2016 Judge: PERRY J Date of judgment: 18 November 2016 Legislation: Migration Act 1958 (Cth) Cases cited: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Craig v South Australia (1995) 184 CLR 163
Date of hearing: 15 November 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 34 Counsel for the Appellant: Dr S Churches Solicitor for the Appellant: Jane Moore, solicitor for Mercy House of Welcome Counsel for the First Respondent: Mr P D’Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent filed a submitting appearance save as to costs ORDERS
SAD 174 of 2016 BETWEEN: CVT15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRY J
DATE OF ORDER:
18 NOVEMBER 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration (the Minister) not to grant the appellant a protection visa.
By a notice of appeal filed on 16 June 2016, the appellant argues that the Tribunal committed an error of law in failing to address relevant material that went to the heart of the appellant’s claims. On 31 October 2016, the appellant filed written submissions. During the course of oral submissions, counsel for the appellant advised that the appellant no longer relied upon the submissions at paragraphs 4-10 and 13-18 inclusive of his written submissions. As a result the issues were narrowed to the question of whether the Tribunal had ignored, or failed to give a proper, genuine and real consideration to, evidence on which the appellant relied in support of his claim that failed asylum seekers from Australia were being targeted which evidence was said to be an essential integer of the appellant’s claims.
For the reasons that follow, no jurisdictional error has been established and the appeal must be dismissed.
2. BACKGROUND
The appellant is a citizen of Afghanistan. He arrived in Australia in June 2012 as an unauthorised maritime arrival. In November 2012, he applied for a protection visa. That application was rejected by a delegate of the Minister in January 2014.
On 17 January 2014, the appellant applied to the Tribunal for review of the delegate’s decision.
The appellant appeared at the hearing of application for review on 22 June 2015. He was represented by his migration agent and appeared with the assistance of an interpreter. Prior to the hearing, on 16 June 2015, the appellant’s representative provided detailed submissions to the Tribunal. Further submissions were provided following the hearing on 26 June 2015. In addition, the appellant provided further submissions dated 9 October 2015 in response to an invitation to comment on information from the Tribunal that had been provided to the appellant on 18 September 2015, and subsequently sent a short email to the Tribunal containing a news report about Afghanistan on 12 November 2015.
On 30 November 2015, the Tribunal affirmed the decision of the Minister’s delegate.
The appellant’s claims before the Tribunal can be summarised as follows.
(1)The appellant feared harmed from the Taliban and/or Daesh (also known as ISIS) for reasons of his race (Hazara), his religion (Shia muslim), his ethnicity (Pashi), his place of origin in Afghanistan, his imputed political opinion against the Taliban and support for the Afghan government/the West, his protracted absence from Afghanistan, his presence in Australia, his application for asylum, and his membership of two particular social groups (Pashi tribe members and returnees from Western countries).
(2)The appellant feared harm from a particular Hazara commander over a disputed land purchase.
(3)The family that he had been living with in Australia had been told three times (by an unknown person) that the appellant was an enemy of the Hazara commander and that the appellant should not be allowed to live with them.
(4)Rumours had been spread about the appellant in a region of Afghanistan that he had converted to Christianity.
The Tribunal concluded that there were “significant inconsistencies in the account that [the appellant] has given of his reasons for leaving Afghanistan” (at [65]), and made adverse credibility findings against the appellant.
First, in light of these credibility findings and country information (discussed further below), the Tribunal concluded that the appellant could safely return to the region of Afghanistan from which he came (at [86]) and did not accept that there was a real chance that the appellant would be persecuted by the Taliban, Daesh or other insurgent groups more generally by reason of his race or religion if he returned to his home region. Nor did the Tribunal accept that there was a real chance the appellant would be discriminated against by reason of his race or that he would be prevented from practising his religion if he returned to the region.
Secondly, the Tribunal accepted that travel outside the appellant’s home region was dangerous, but that these dangers affected all travellers and that the country information available did not indicate that his particular ethnic group were targeted for persecution when travelling on the roads (at [87]-[92]).
Thirdly, the Tribunal did not accept that there was a real chance that the appellant would be killed, kidnapped or otherwise persecuted by reason of his race, religion or ethnicity; nor that there was a real chance the appellant would fall victim to Sunni-Shia sectarian violence if he returned to Afghanistan now or in the reasonably foreseeable future (at [94]-[95]).
In the fourth place, the Tribunal did not accept that the appellant would be persecuted because of the time he spent in Australia, the time he spent outside of Afghanistan or because he would be returning to Afghanistan as a failed asylum seeker from a Western country (at [102]-[103]).
For these reasons, the Tribunal found that the appellant has not established a well-founded fear of persecution for a Refugees Convention reason and therefore did not satisfy the criterion for the grant of a protection visa in s 36(2)(a) of the Act (at [104] and [111]). For the same reasons the Tribunal concluded that the appellant did not meet the complementary protection criteria in s 36(2)(aa) of the Act (at [105]-[111]).
The appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court (the Court below). On 26 May 2016, the Court below dismissed the application for judicial review. Specifically, the Court below held that the reasons of the Tribunal “reflect a careful evaluation of the submissions advanced by the representatives on behalf of the [appellant]” (at [22]), the Tribunal “took into account the whole of the submissions advanced on behalf of the applicant” (at [23]), and the grounds of the application failed to make out any jurisdictional error.
3. RELEVANT PRINCIPLES
The relevant principles were summarised in the Minister’s submissions as follows:
27. First, there is no error of law in simply making a wrong finding of fact.
28.Secondly, the obligation to give reasons and to set out findings on any material questions of fact does not extend to a line-by-line refutation of all the evidence. The fact that a decision-maker does not do so is not of itself jurisdictional error, nor does it establish a failure to take into account a relevant consideration. Considerable care must be exercised before any conclusion should be reached that a particular document which is expressly referred to has not been properly taken into account or not been given such weight as the Tribunal considers appropriate.
29.Thirdly, the proper enquiry is whether the ‘evidence or claims were addressed in the Tribunal’s decision making process’.
30.Fourthly, the Appellant cannot establish jurisdictional error by showing that the Tribunal preferred particular country information to other country information. The Tribunal was not bound to accept the country information cited by the Appellant.…
31.Fifthly, the Tribunal has a discretion, when considering evidence to ascribe weight and inform itself on evidence and facts before it, so long as that discretion is not exercised unreasonably.…
(footnotes omitted)
Finally, the Minister submitted that the statement on which the appellant relied in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 that the decision-maker must give “proper, genuine and realistic consideration to the merits of the case” should be treated with caution so as to avoid ‘sliding’ into impermissible merits review: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 175-176 [30].
No issue was taken by the appellant with the Minister’s summary of relevant principles subject only to the need to bear in mind the grounds of judicial review articulated by the High Court in cases such as Craig v South Australia (1995) 184 CLR 163 at 179, namely that:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
4. CONSIDERATION
As noted earlier, the appellant raises one ground of appeal from the decision of the Federal Circuit Court, the scope of which narrowed substantially in the course of the appellant’s argument. The appellant submits that the Tribunal failed to address relevant material that went to the heart of the appellant’s claims. However, it is apparent from the appellant’s written submissions that he does not allege that the Tribunal did not refer at all to material that was placed before it. Rather, the appellant asserts that the Tribunal did not “properly consider” or deal with the material, or did not “realistically deal with evidence”.
The appellant’s submissions focused first upon the last sentence in paragraph [62] of the Tribunal’s reasons where it found that:
[The appellant’s] representatives referred (as they had in their previous submission) to the abduction of 31 Hazaras in Zabul Province in February 2015 (also referred to by [the appellant] in the course of the hearing) and they also referred to an incident in which gunmen had shot dead 13 Hazaras in Balkh Province in September 2015. They submitted that the frequency and widespread reports of Hazara being kidnapped and killed while travelling on the roads in Afghanistan indicated that the attacks were motivated by the victims’ Hazara ethnicity and/or ‘returnees of perceived wealth’. They submitted that this had not been contested by the Australian Department of Foreign Affairs and Trade in its two reports but the Department said that kidnappings of Hazaras were relatively rare in a country-wide context, pointing to the fact that, according to the UNAMA 2015 mid-year report on protection of civilians in Afghanistan, of the 196 abduction incidents country-wide in the first six months of 2015, only 10 incidents involved Hazaras. None of the reports to which [the appellant’s] representatives themselves referred suggested that the Hazaras who had been kidnapped were returnees from anywhere or that they were targeted for reasons of being returnees.
(emphasis added)
The Tribunal continued at [63] that:
[The appellant’s] representatives referred to the fact that the Department had said that returnees from western countries faced a similar level of risk to other people in Afghanistan who were associated with support for the government or the international community and they submitted that this would put [the appellant] at significant risk of being targeted by the Taliban. However the Australian Department of Foreign Affairs and Trade assesses that returnees from western countries are not specifically targeted on the basis of their being failed asylum-seekers and that returnees from western countries who maintain a low profile do not face a significantly higher risk of violence or discrimination than other people in Afghanistan with a similar ethnic and religious profile. [The appellant’s] representatives submitted that this conclusion was highly questionable in the absence of tracking mechanisms for returnees but they did not refer to any evidence supporting their submission that [the appellant] would be at significant risk as a returnee from a western country.
However, the appellant said that the last sentence in each of paragraphs [62] and [63] was plainly incorrect and established that certain materials referred to in the letters from the Refugee and Immigration Legal Centre (RILC) written on behalf of the appellant dated 16 June 2015 were not realistically dealt with, or were ignored or not properly considered by the Tribunal, namely:
(1)two reports of Mr Phil Glendenning (Director of the Edmund Rice Centre and the President of the Refugee Council of Australia) dated 2012 and 2014 respectively; and
(2)a report of an academic affiliated with the Australian National University, Professor William Maley dated 2014.
(together, the Glendenning and Maley materials)
The parts of the Glendenning and Maley materials on which the appellant relied were quoted in the submissions by the appellant’s representatives dated 16 June 2015 (the submission).
First, the submission referred to statements made by Mr Glendenning in a press release dated April 2012 including that:
The returnees are being actively targeted for having left the country, because they are seen as being favourable to the West, and many are falsely held to have converted to Christianity.
Secondly, the submission quoted from a press release from the Refugee Council of Australia dated 27 August 2014 which relevantly stated that:
Grave fears for asylum seeker forcibly returned to Afghanistan.
News that the Australian government forcibly repatriated an Afghan asylum seeker overnight has been met with alarm by the Refugee Council of Australia (RCOA).
RCOA President Phil Glendenning, who returned to Australia last week after spending eight days in Afghanistan, said the security situation in Afghanistan has deteriorated significantly as a result of the ongoing impasse over the results of the presidential election held earlier this year.…
…
“Senior Afghan officials told me that anyone who has sought asylum in a Western country would also be at risk.
“No one with any knowledge of the situation in Afghanistan could possibly come to the conclusion that conditions are conducive to safe return.
“I would hold grave fears for the safety of any person returned to Afghanistan in the current circumstances, let alone a Hazara person from Jaghori who will be perceived as having sympathies with foreigners.
(emphasis in the original)
Thirdly, the submission referred to an article in The Conversation on 15 October 2014 by Professor Maley (described as a noted authority of Hazaras and Afghanistan) titled
“Australia’s folly returns Afghan Hazaras to torture and death”. In the article, Professor Maley referred to two attacks in late 2014 on Hazaras who had lived in Australia. The article also included a reference to the Deputy Governor of Ghazni province who stated that Hazaras who are returned to Afghanistan “are in particular danger of being tortured or murdered” and expressed the opinion that the reason why one of the Hazaras was killed was because “[h]e came from a country that the Taliban thinks is an infidel country… Hazaras have long been persecuted in Afghanistan, but those returned from countries like Australia are in particular danger of being tortured and murdered…”.
However, the Tribunal did not overlook these materials. Specifically at [17] the Tribunal in summarising the appellant’s submissions, explained that:
[The appellant’s] representatives submitted that, as a result of his long absence outside Afghanistan and also his time sent in Australia, he was at risk of being associated with and being seen as a supporter of the West and that he would thus be considered a legitimate target by the Taliban and other anti-Western insurgents such as Islamic State. They quoted from a press release issued by the Refugee Council of Australia and a media report relating to the removal of a failed asylum-seeker to Afghanistan in August 2014 and from media reports and an opinion piece published by Professor William Maley in October 2014 referring to the killing of an Australian citizen of Afghan origin …and the claimed abduction and torture of an Afghan removed from Australia… on the roads between the Jaghori District and Kabul in September 2014. They also referred to claims made by Phil Glendenning of the Edmund Rice Centre in April 2012 that failed asylum-seekers returned from Australia had been targeted because they were seen as being favourable to the West and many were falsely held to have converted to Christianity.
The Tribunal referred again to this material at [96] of its reasons which it summarised in essentially the same terms. However, the Tribunal put independent country information to the appellant at the hearing which contradicted those views and indicated that low-profile individuals are not subject to discrimination or violence as a result of having spent time in Western countries, and gave the appellant the opportunity to respond.
Furthermore and importantly, in reaching its conclusions, the Tribunal specifically addressed and made findings on the substance of the Glendenning and Maley materials.
First, the Tribunal accepted at [101] that an Australian citizen of Afghan origin was killed when returning to Kabul in September 2014, as mentioned in the opinion piece published by Professor Maley in October 2014. The Tribunal also referred to news reports that an Afghan Hazara removed from Australia had been abducted and tortured by the Taliban although it found that those reports have not been corroborated. However, the Tribunal concluded that “as the Australian Department of Foreign Affairs and Trade has observed in relation to kidnappings, the motivations behind such incidents are often unclear.”
Secondly, the Tribunal found that the claims by Mr Glendenning in April 2012 that failed asylum seekers returned from Australia had been targeted because they were seen as being favourable to the West, and many were falsely held to have converted to Christianity “are not supported by independent sources” (at [102]).
Read therefore in the context of the whole of the Tribunal’s reasons, it cannot be said that the Tribunal ignored the evidence on which the appellant relied in support of his claim that failed asylum seekers from Australia were being targeted. Ultimately the appellant’s challenge took issue with the weight given by the Tribunal to Glendenning and Maley materials which is beyond the legitimate scope of judicial review to address.
It follows that the sole ground of appeal that was pressed cannot succeed.
5. CONCLUSION
The appeal must be dismissed. The appellant is to pay the first respondent’s costs as agreed or assessed.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 18 November 2016
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