CVY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 525
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CVY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 525
File number(s): SYG 2024 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 21 June 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant a Safe Haven Enterprise visa – whether the applicant made claim there is no place for the applicant’s family to relocate to where they will be safe – whether if made the Authority ought to have considered such claim – Authority had no jurisdiction to determine such claim – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2B) 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Cases cited: CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155 Division: General Number of paragraphs: 22 Date of hearing: 14 April 2022 Place: Sydney Solicitor for the Applicant: Mr J Moyes of D’Ambra Murphy Lawyers, by video Solicitor for the First Respondent: Mr G Pasas of Clayton Utz, by video ORDERS
SYG 2024 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVY17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
21 June 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 7 June 2017 the second respondent (Authority) affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant, a national of Afghanistan, a Safe Haven Enterprise (subclass 790) visa (SHEV). The Authority found the applicant would face a small but real chance of being seriously harmed if he were to return to his home area in Afghanistan; but the Authority was also satisfied that it would be reasonable for the applicant to relocate to another area of Afghanistan.
On this application for remedies under s 476 of the Migration Act1958 (Cth) (Act), the applicant claims the Authority failed to assess a particular objection the applicant made to the reasonableness of his relocating within Afghanistan and, for that reason, the Authority made a jurisdictional error.
To be in a position to determine the applicant’s claim, it will be necessary to set out his claims for protection, identify the objection the applicant claims he made to the reasonableness of his relocating within Afghanistan, and the Authority’s reasons for affirming the delegate’s decision.
CLAIMS FOR PROTECTION
In the statutory declaration dated 3 March 2016 that accompanied his application for a SHEV (Statement), the applicant claimed as follows:[1]
(a)The applicant was born in Pakistan to parents who are nationals of Afghanistan. The applicant is of Hazara ethnicity, and a Shia Muslim. The applicant’s stepsisters, stepmother, and father live in Pakistan, and the applicant’s mother lives in Afghanistan.
(b)Hazaras in Afghanistan have long been oppressed, discriminated against, tortured, and murdered. The applicant’s parents believed that the only way to stop the persecution of the Hazara people was to change those in power. For that reason, the applicant’s parents were always very active in Afghan politics, even when living in Pakistan.
(c)In 2002 the applicant’s family moved back to Afghanistan in anticipation of the 2004 election. The applicant’s father wanted to assist in the campaign, and insisted the applicant do everything possible to support their political representative. The applicant was 14 years of age at the time.
(d)In 2003 the applicant’s father informed the applicant that he was applying for a “national identity document” for the applicant so that the applicant could vote in the 2004 election, even though the applicant was not yet 18 years of age. The applicant’s father advised the applicant to wear traditional dress that would cover his head and body to appear older. The applicant’s father advised the applicant to do this so that he could list the applicant’s date of birth as being 1985.
(e)The applicant and his family were involved in the 2004 election campaign for the election of a particular political leader, Mr M, and they became known in the community as great supporters of this leader. The applicant voted for Mr M in the 2004 election.
(f)The applicant and his family remained in Afghanistan in anticipation of the 2009 election. In the lead up to the 2009 election, the Taliban took a “much more violent stance”, and attacks began in mid-2008 as voters started to register.
(g)In the middle of 2008, the applicant’s family began actively supporting Mr B, a Hazara political candidate. In the lead up to the election the applicant distributed posters, and the applicant and his family began receiving threats in relation to their public support of Mr B. The Taliban killed thousands of Hazaras in the lead up to the election. The applicant and his family knew they had to leave Afghanistan; but the applicant and his family maintained that they had to be present for the election which was due to be held in August 2009. The applicant and his family planned to flee Afghanistan, and return to Pakistan shortly after the election.
(h)The applicant fears that if he returns to Afghanistan he will be harmed by the Taliban because the applicant is Hazara. The applicant claimed “there is no place for my family and I to relocate to, where we will be safe”.
[1] CB63-65
DELEGATE’S DECISION
The delegate found that if the applicant were to return to his home area, Ghazni, “his chance of being subject to serious harm on account of his race and religion cannot be described as remote or insubstantial”. For that reason, the delegate was satisfied the applicant faces a real risk of serious harm if he is to return to Ghazni province.[2] The delegate, however, found that, taking into account the applicant’s personal circumstances, it was reasonable for the applicant to relocate to Kabul.[3] The delegate, therefore, refused to grant the applicant a SHEV.
[2] CB202
[3] CB207
REFERRAL AND SUBMISSIONS TO AUTHORITY
The delegate’s decision was referred to the Authority on 11 November 2016. On 2 December 2016 the applicant provided submissions to the Authority.[4] Those submissions took issue with the delegate’s finding that it was reasonable for the applicant to relocate to Kabul.
[4] CB215
AUTHORITY’S REASONS
The Authority accepted the following:
(a)The applicant is a Hazara Shia Muslim and an Afghan citizen. The applicant was born in Pakistan to Afghan parents who were born in Ghazni Province.
(b)The applicant and his family returned to Pakistan in 2002 and resided in Ghazni City until 2009.
(c)The applicant’s parents divorced and his father re-married, after which in 2009 the applicant, his father, his stepmother, and siblings relocated to Pakistan.
(d)The applicant’s mother, four maternal aunts, and paternal uncle reside in Kabul.
(e)The applicant is in contact with his mother, and he visited her in Kabul in 2012 when arranging his journey to Australia.
(f)The applicant has lived the majority of his life in Pakistan, but he did not acquire Pakistani citizenship. Ghazni City is the place with which the applicant has the closest connection in Afghanistan because the applicant resided there between 2002 and 2009, and the applicant’s father there owns and operates shops through a local manager.
(g)The applicant voted in two elections.
(h)The applicant had an ideological and religious dispute with “A” when the applicant received his voter registration card. (This was a claim the applicant first made in his interview by the delegate.[5])
(i)The applicant’s father did some low level campaigning for a Hazara candidate in 2008 and 2009.
[5] CB198
The Authority did not accept the following:
(a)The applicant distributed political posters or was engaged in any campaigning.
(b)The applicant and his family became known in the community as “great supporters” of any candidate, or received threats due to their public support for any candidate.
(c)The applicant faced any problems because of his father’s political activity.
(d)The applicant’s dispute did not continue after the applicant stopped working next door to A, or that the applicant was threatened by A’s brother, a member of the Taliban.
(e)The applicant or his family had any profile in the community, or were of any adverse interest to the Taliban or any “AGEs” (that is, the Anti-Government Elements).
(f)The applicant’s or his family’s decision to leave the area was influenced by any problems they had on account of their political opinion.
(g)The applicant would be identifiable as a supporter of any particular politician.
Relying on country information the Authority found the applicant faces a small but real chance of serious harm as a Hazara Shia returnee from insurgents on the road to and around Ghazni City. The Authority, however, was not satisfied the applicant faces a real risk of serious harm in all areas of Afghanistan. The Authority concluded as follows:[6]
On the evidence before me, I am not satisfied that the applicant faces a real chance of being harmed by A or A’s brother in relation to his dispute with A. I am also not satisfied the applicant faces a real chance of being killed, forcibly recruited or otherwise suffering serious harm from the Taliban, Islamic State, or other extremists/insurgents/AGEs, nor pro-government groups, government or members of the community including Pashtuns and Kuchis in Kabul or Mazar-e-Sharif in relation to his father’s political campaigning or his own political expression or voting, nor on the basis of his profile as a Hazara Shi’a male who would be returning after several years, as a westernised failed asylum seeker from Australia, or for any actual or imputed connection with or support for the Afghan government, western or international community (or any contrary imputed opinion of being anti-Taliban/Islamic State/AGE). While the applicant has personal links and familiarity with Kabul, I have also had regard to the fact that he may initially be treated as an outsider upon return and that he has no identifiable links in Mazar-e-Sharif. I have also considered the risks from generalised violence and criminality. However I am not satisfied that these various factors would, individually or cumulatively, lead to a well-founded fear of persecution in Kabul or in Mazar-e-Sharif, or in accessing those cities, in the reasonably foreseeable future.
[6] CB252-253, [48]
On the basis of these findings the Authority was not satisfied the applicant was a refugee within the meaning of s 5H(1) of the Act and, for that reason, did not satisfy the criterion under s 36(2)(a) of the Act for the grant of a SHEV.
In relation to whether the applicant satisfied the complimentary protection criterion provided for by s 36(2)(aa) of the Act, the Authority found the applicant will face a real risk of harm if he returns to his home area. The Authority then considered whether, for the purposes of s 36(2B) of the Act, it would be reasonable for the applicant to relocate to an area of Afghanistan where there would not be a real risk that the person will suffer significant harm. In considering that question, the Authority:
(a)was not satisfied the applicant faces a real risk of suffering significant harm in returning to, and residing in, Kabul or Mazar-e-Sharif;
(b)did not accept the applicant would face discrimination for any reason in Kabul or Mazar-e-Sharif that would amount to significant harm for the purposes of s 36(2A) of the Act;
(c)Kabul or Mazar-e-Sharif are under the effective control of the Afghan government and would be so in the foreseeable future, and the risk of the applicant being harmed through generalised or insurgent violence or criminality was remote;
(d)was not satisfied the applicant will become destitute if he relocated to Kabul or Mazar-e-Sharif, or that the challenges the applicant might otherwise face if he so relocated would make relocation unreasonable;
(e)was satisfied that the applicant, having previously resided in Kabul, and having strong family links there, could benefit from these established networks to obtain work, shelter, and integrate into the community should he return to Kabul;
(f)was satisfied that, although, if he were to relocate to Mazar-e-Sharif instead of Kabul the applicant may be without a personal or family network, and that a further separation from his family in the short to medium term would be emotionally challenging, it would not be unreasonable for these reasons for the applicant to relocate to Mazar-e-Sharif.
The Authority concluded this part of its reasons as follows:[7]
I am satisfied that in Kabul or Mazar-e-Sharif the applicant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. While he would initially be recognised as an outsider if he returned to Mazar-e-Sharif, I am satisfied that over time the applicant would find community support among the Hazara population of the city. I find it would be reasonable for the applicant to remain in Kabul or Mazar-e-Sharif.
[7] CB257, [68]
On the basis of these findings the Authority was not satisfied the applicant satisfied the criterion prescribed by s 36(2)(aa) of the Act.
GROUND OF APPLICATION
The applicant relies on the ground stated in the amended application filed on 3 March 2022, which is as follows:
The Second Respondent Immigration Assessment Authority (‘IAA’) made a jurisdictional error because it failed to assess a particular objection raised by the applicant to relocation.
Particulars
(a) The applicant is a citizen of Afghanistan. He claimed that his mother resided in Kabul and that his father, stepmother, step-brother and two step-sisters resided in Pakistan: See, for instance, Court Book (‘CB’) 5 - 8, 40 & 240[8].
(b) The applicant claimed in his statutory declaration at CB64 that: “Hazara people face persecution all across Afghanistan, there is no place for my family and I to relocate to, where we will be safe.”
(c) The IAA found at CB243[19] that the applicant faces a small but real chance of serious harm as a Hazara Shi’a returnee from insurgents on the road to and around Ghazni City (CB243), but found that the applicant could relocate to Kabul and Mazar-e-Sharif.
(d) The IAA, however, did not assess the applicant’s particular objection that there is no place for his family to relocate to, where they will be safe.
Parties’ submissions
In his written submissions the applicant submits as follows:
(a)In the Statement the applicant advanced the following specific objection to the reasonableness of his being relocated in Afghanistan (applicant’s emphasis):
Hazara people face persecution all across Afghanistan, there is no place for my family and I to relocate to, where we will be safe.
(b)The Authority did not address this specific objection because:
(i)the Authority did not, in its reasons, refer to the “complete objection”;
(ii)instead, the Authority summarised the applicant as claiming that he “will not be safe anywhere in Afghanistan”; and
(iii)the Authority’s summary of the applicant’s objection is incomplete because the Authority does not refer to that part of the applicant’s objection that there is no place for his family to relocate to where the applicant’s family will be safe.
The Minister, in his written submissions, submits the applicant did not make the specific objection to relocation the applicant submits he did. The Minister further submits that, even if the applicant made such a specific objection, it was irrelevant to the applicant’s claims for protection.
Determination
It is the case that the Authority did not in terms consider whether there is no place in Afghanistan for the applicant’s family to relocate where they will be safe. But this was not a question the Authority has jurisdiction to determine. Whether there is no place in Afghanistan for the applicant’s family to relocate where they will be safe is a question that was irrelevant to the questions the Authority was required to determine in reviewing the delegate’s decision not to grant the applicant a SHEV. Those questions, at least to the extent they related to whether the applicant satisfied s 36(2)(aa) of the Act, were:
(a)whether the applicant faces a real risk of significant harm at the area in Afghanistan to which he would be expected to return;
(b)if so, whether there is another area or areas in Afghanistan where, if the applicant were to relocate there, the applicant would not face a real risk of serious harm; and
(c)if so, whether it would be reasonable for the applicant to relocate to that area or to any one of those areas.
The Authority found the applicant would not face a real risk of serious harm if he were to relocate to Kabul or to Mazar-e-Sharif, and that it would be reasonable for the applicant to relocate to Kabul or to Mazar-e-Sharif.
That the Authority had no jurisdiction to determine whether there is no place in Afghanistan for the applicant’s family to relocate where they will be safe is supported by the Full Federal Court’s judgment in CAR15 v Minister for Immigration and Border Protection.[8] In that case it was contended that the Administrative Appeals Tribunal, in determining whether it was reasonable for a child applicant to relocate in her country of nationality, conflated the issue of the reasonableness of the child’s relocation with the reasonableness of her parents’ relocation. The Full Federal Court said:[9]
If, as the appellant contends, the Tribunal concluded as it did because it assessed the reasonableness of the relocation of anybody other than the appellant, it will be shown to have misunderstood the statutory task with which it was entrusted and, thereby, to have committed jurisdictional error.
[8] CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155
[9] CAR15 v Minister for Immigration and Border Protection [2019] FCAFC 155, at [34]
CONCLUSION AND DISPOSITION
The Authority did not commit any jurisdictional error by not considering whether there is no place in Afghanistan for the applicant’s family to relocate where they will be safe. The application will therefore be dismissed.
The parties agreed that costs should follow the event and that costs should be set in the amount provided for in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is $8,371.30. I will therefore order that the applicant pay the Minister’s costs set in the amount of $8,371.30.
I will also order that the Minister’s name be changed to its current description.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 21 June 2023
0
1
0