CYD17 v Minister for Home Affairs
[2019] FCCA 74
•14 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYD17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 74 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.198(6); 473DB(1); 473DC |
| Cases cited: CRY16 v Minster for Immigration and Border Protection [2017] FCCA 1549 DZU16 v Minister for Immigration and Border Protection [2017] FCCA 581 |
| Applicant: | CYD17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 419 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 14 January 2019 |
| Date of Last Submission: | 14 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 14 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L.J. Karp |
| Solicitors for the Applicant: | Fisher Dore |
| Counsel for the Respondent: | Mr A.G. Psaltis |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the Applications filed 1 May 2018 and 10 December 2018 are dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 419 of 2018
| CYD17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The Applicant, CYD17, was deemed by the department to have been born in 1993. He is a citizen of Afghanistan. He entered Australia on 14 December 2012. On 26 May 2016, he was allowed to apply for a safe haven enterprise visa. He was interviewed by the delegate. The delegate refused the application on 25 November 2016.
Because that decision was a fast-tracked decision, the matter was referred to the Immigration Assessment Authority (“the IAA”). The IAA considered the matter and ended up affirming the decision of the delegate on 15 June 2017.
On 3 July 2017, the Applicant sought judicial review of the IAA’s decision. On 31 January 2018, His Honour Judge Jarrett, of this Court, quashed the IAA’s decision and referred the matter back to the authority for reconsideration. It would seem that the reason that His Honour did so was that he found that the IAA failed to consider a claim that the Applicant had made.
On 29 March 2018, the IAA, differently constituted, considered the claim again and again decided to affirm the delegate’s decision. The Applicant, on 1 May 2018, applied to this Court for a review of that decision. On 10 December 2018, the Applicant filed an amended originating application, which I have accepted and upon which this proceeding has been heard.
The Applicant’s claims, in short, are that he is a Shia Hazara, and he was born in the Uruzgan Province. When he was aged between one and two, his family home was the subject of a bomb that was set by the Taliban. He suffered injuries, most notably scars to his face and a disfigured right hand with some fingers missing.
When he was aged three or four, his father was decapitated by the Taliban. The Taliban also confiscated the family’s land. His mother took the family to Daykundi Province. All of this history is something that was told to the Applicant by his mother rather than anything that he remembers, simply because he was too young
The Applicant went to school and studied up until year nine in Daykundi. In late 2011 or early 2012, the Applicant travelled to India for surgery on his hand. He was in India for about 14 days. He travelled there on a genuine Afghan passport. He said that he decided to flee Afghanistan because of the increasing risk of persecution by the Taliban. He said that his mother urged him to flee because she recognised signs of potential persecution by the Taliban. His mother and two sisters remain in Daykundi. The Applicant said he made three unsuccessful attempts to depart Afghanistan but was returned each time. On the fourth attempt, he arrived in Australia at Christmas Island.
He says that he will be targeted by the Taliban because he is the eldest son, and because his father is dead, he will be seen as head of the family. He fears that if he returns, the Taliban will believe that he has come back to reclaim the family land and that they will, therefore, harm him. He believes that the Taliban will also persecute him for being a student.
He also fears that his scars and injuries could give him away to the Taliban. He said he will be harmed because he is a returning asylum seeker who has spent time in the west, and he said he will face harm because he will not be able to find work in Afghanistan and will be unable to continue his education. He said that he cannot relocate anywhere because the Taliban is throughout the country.
The IAA went through those claims and made a number of conclusions. Most notably was the rise in the ability of Hazaras to achieve significant social status, such that the country’s second vice-president is now a Hazara. He replaced a vice-president who was also an ethnic Hazara. Nonetheless, the IAA noted that Hazaras still face societal discrimination.
The IAA came to the conclusion that because the Applicant has not been in his home province since he was a very young boy, that the Taliban would not have any interest in him whatsoever, and certainly not target him for coming back into the country, nor would they think that he was coming to reclaim the land or to, in any way, do something on behalf of his family.
The IAA found that, if the Applicant went back to the place where his mother and sisters are, that is, Daykundi, he would not face a real chance of harm there. The IAA went through his claim as to his education and found that there would be no serious harm to be visited upon him because of his wanting to get an education, nor would he be disadvantaged in trying to get that education.
At paragraph 40, the IAA said that they considered whether the Applicant can safely access Daykundi should he return to Afghanistan. The IAA said this:
… The information in the material indicates that returnees from western countries are almost exclusively returned to Kabul. Kabul is serviced by an international airport which has been attacked on a number of occasions, including a rocket attack in 2014 when a rocket landed on the runway apron. Attacks have also occurred in the vicinity of the airport including one where a European Union vehicle was hit by a vehicle-borne improvised explosive device. The Afghan authorities have put a range of countermeasures in place to prevent and respond to such attacks. There are numerous checkpoints along the highway from the airport to Kabul at major intersections and at government and international institutions within Kabul…
Nonetheless, there were still some violent attacks within the city that are, to use the words of the IAA , “common”.
The IAA was satisfied that there is a strong security presence in Kabul and that this would continue in the reasonably foreseeable future. At paragraph 42, the IAA said this:
The information before me does not indicate whether there are civilian flights between Kabul and Daykundi, but it does note that there are direct civilian flights between Kabul and Bamiyan province, which borders Daykundi to the north. As noted above, Bamiyan is a Hazara majority province and forms part of the Hazarajat. It is assessed to be one of the more peaceful provinces and like Daykundi, it is assessed as relatively safe for Hazaras…
The IAA also noted that the northern areas of Daykundi and the southern areas of Bamiyan, which border each other, are also considered to be the safest parts of the two provinces. Further, the IAA noted that there is no information in the material indicating that Hazaras or Hazara Shias face a real chance of harm travelling by road within the Hazarajat.
The IAA was satisfied that the Applicant could safely access Kabul, purchase an air ticket and travel to Bamiyan, and then safely access Daykundi by road. And they were satisfied he does not face a real chance of harm accessing Daykundi.
The fear that the Applicant said that he had returning as a failed asylum seeker was also considered by the IAA. At paragraph 45, the IAA said that:
According to the most recent report, DFAT was aware of occasional reports alleging that returnees from western countries have been kidnapped or otherwise targeted based on their having spent time in a western country. DFAT also notes that people who are identified as having international associations face a high risk of being targeted by AGE and this may possibly include returnees from western countries; however most returnees take measures to conceal their association with the country from which they have returned and keep a low profile on return…
Paragraph 46, the IAA said this:
I have found that the applicant does not now or in the reasonably foreseeable future face a real chance of being harmed because of any adverse profile with the Taliban or Pashtun. He has not claimed he will need to carry or display any documentation in relation to his asylum claims or his time in the west, or that he will need to disclose this to any person. He has not claimed to have any physical characteristics, speech, mannerism, carriage or dress style which would identify him as a returned asylum seeker or someone who has spent time in the west. He has not claimed he has, or exhibits, any behaviour which he would need to modify if he is to avoid being so identified. While I accept he is readily identifiable as a Hazara, there is nothing in the material to indicate that he is otherwise identifiable as a returned asylum-seeker or one who has spent time in the West.
Whilst the Applicant did tell the delegate at the Safe Haven Enterprise Visa (“SHEV”) interview that he did not want to stay in Daykundi because it was like a prison that he cannot get into or out of, and that he was a young man and wants to study and improve his life, the IAA noted that this was not an illustration of him having any particular well-founded fear of harm. He claimed to fear harm because he would not be able to find work if he is relocated, but the IAA was satisfied that he can return to his home province and does not need to relocate.
At paragraph 50, the IAA said:
While I accept that the applicant may not wish to return to Daykundi and may consider it limiting, I am not satisfied he will be unable to find employment or be unable to subsist. I am not satisfied he faces a real chance of harm arising from his ability to find employment.
The IAA found that the Applicant did not meet the criterion for being a refugee. The IAA then looked at the complementary protection criterion and also found that the applicant did not meet those criterial.
There are two grounds of this application, and I will deal with them seriatim. First ground is:
1. That the IAA failed to comply with ss.473DB (1) of the Migration Act by failing to consider review material provided to the authority under section 473CB of that Act.
Particulars:
(a) Failure to consider material cited in the delegate’s decision to the effect that the applicant’s home area of Daykundi is cut off by snow, and thus inaccessible by road for “months at a time”.
This ground goes to the finding of the IAA at paragraph 42 that the Applicant could get to Daykundi if he was removed from Australia.
In the material before the IAA was the decision of the delegate. The delegate noted, at page 93 of the court book, that according to country information, Daykundi is a mountainous province situated 460 kilometres west of Kabul, and it is a Hazara majority province. Due to heavy snowfall in the winter, the road remain blocked for months, cutting off communication with the rest of the country.
It is argued that such information was not considered by the IAA. The IAA simply said that the Applicant could fly from Kabul to Bamiyan province, and from Bamiyan province go on the road into Daykundi. The submission is that if one considered the information that was before the delegate, then one would have to consider the country information that the roads are cut off by snow in the winter.
This could mean that the road between Bamiyan and Daykundi is inaccessible at certain times of the year. If that were so, then, depending upon the time at which it is that the Applicant has to leave Australia, there is a chance that he would not be able to get to Daykundi province.
If it is that Daykundi would be cut off for months at a time, then it would mean that the Applicant is effectively going to be “relocated” either to Kabul or to Bamiyan for months until the roads are passable. That would mean that it would not be a short relocation, but it could be a long relocation. It is submitted that the IAA should have then considered whether or not it was reasonable for the Applicant to be relocated to Bamiyan or Kabul for the months in which it would take for the roads to reopen.
As far as this submission is concerned, whilst it was argued with great force and conviction by Mr Karp, it was still somewhat speculative. The whole point is, one does not know when it is that the Applicant would be relocated from Australia to Afghanistan in any event.
As Mr Karp pointed out, s.198(6) of the Migration Act1958 (Cth) (“the Act”) says that an officer must remove, as soon as reasonably practicable, an unlawful non-citizen if the non-citizen is a detainee, and the non-citizen made a valid application for a substantive visa that can be granted when the Applicant is in the migration zone, and that the grant of visa has been refused and the application has been finally determined.
The problem is, no one has defined what “reasonably practicable” means and whether that is simply that whenever it is that the matter has been finally determined. Again, no one knows when that will be. The point Mr Karp makes is that this was not even considered by the IAA, and because it may lead to a relocation to Bamiyan or to Kabul for some months, it should have been considered.
The problem with this argument is that it is predicated upon the IAA saying this:
The information before me does not indicate whether there are civilian flights between Kabul and Daykundi, but notes there are direct civilian flights between Kabul and Bamiyan province...
If one goes to that very same source of information, that is, the information from the delegate that spoke of the heavy snowfall in the winter, one would see this at page 95 of that decision, which is headed Ability to Return to Daykundi. In the second paragraph, the delegate says:
During the SHEV interview, the applicant indicated he was aware there is an airport in Nili and that there are flights between Kabul and Nili. The applicant did not provide any reason why he could not undertake air travel from Kabul to Nili. Country information indicates that none of Afghanistan’s five domestic airlines operates between Kabul and Daykundi, although East Horizon Airlines operates domestic flights to the neighbouring province of Bamiyan three times a week, and Kam Air began direct commercial flights between Kabul and Bamiyan in March 2016. Bamiyan is considered the home to the Hazara minority in Afghanistan and it is known as the country’s safest region and regarded as one of the most liberal…
The delegate said:
… I note that Daykundi and Bamayan provinces share a border with interconnecting roads. I have found no evidence to suggest there is a security risk for Hazaras travelling between Daykundi and Bamayan provinces.
I am satisfied that the costs of airfares would not be prohibitive, noting that the applicant has indicated he has saved $2,000AUD. I therefore find the applicant has safe and lawful access to his home region of Nili in the event he were to return to Afghanistan.
Having seen that that was the finding that was made by the delegate, the Applicant, neither in his application to the IAA or in raising this before His Honour Judge Jarrett, or then raising it again before the matter went to this IAA, raised with the IAA the fact that the delegate was incorrect in saying that the Applicant could access Nili, because if it were at a certain time, that would mean that he could be stuck in Bamiyan or Kabul if the roads were impassable.
Whilst it seems, on the face of it, that what the Applicant has claimed in this case, that the IAA has not drawn attention to that particular part of the evidence is correct, the question truly is whether that is a jurisdictional error. One has to consider this. The IAA was charged with ensuring that, on the evidence, the Applicant could return safely if he were removed to Afghanistan.
What the IAA has found is that Kabul is relatively safe and that there are security measures in place to keep it safe. The Applicant himself has spoken about staying at Kabul for periods of time with relatives. The Applicant has spoken about travelling on the roads between Kabul and Nili himself before it was that he left Afghanistan. The IAA has looked at flying the Applicant to Bamiyan. Bamiyan is the safest area for Hazaras in Afghanistan. The IAA has looked at the interconnecting roads between Bamiyan and Daykundi.
In that respect, the IAA has been able to satisfy itself that, whatever happens as far as the travel arrangements are concerned, the Applicant can, to use the words of the delegate, have safe and lawful access to his home region of Nili in the event he were to return to Afghanistan. Whilst that is not repeated by the IAA, the IAA has said that there is no information in the material that would suggest that Hazaras or Hazara Shias face a real chance of harm travelling by road within the Hazarajat. That is notwithstanding that the information that the delegate looked at noted the snowfall that occurs.
When one looks at those matters, I am of the view that, even if there were an error made by the IAA in failing to deliberately refer to the fact of the snowfall, it is not a jurisdictional error. That is because what the IAA needed to do was to look at whether or not it was safe for the Applicant to travel from Kabul to Nili.
Whether that means the Applicant stays in Kabul for some time, or whether that means the Applicant stays in Bamiyan for some time or whether somehow the Applicant can get through some form of either direct or indirect route from Kabul to Nili. On the evidence that is before it, that is a matter that the IAA has been able to positively be satisfied of.
I do not accept the contention by the Applicant that because there is the remote possibility that the roads are cut off for months, that this means that the IAA needed to look at relocation to Kabul or to Bamiyan. In my view, that is drawing far too long a bow. Whether the stopover is for hours, for days, for weeks, or even as long as months, it was a temporary stopover in areas that the IAA has deemed as safe.
Therefore, I do not find that ground one illustrates any jurisdictional error.
Ground two is that:
2. The IAA’s decision was affected by legal unreasonableness.
Particulars
(a) The IAA failed to consider whether it should use the discretion given to it by s.473DC of the Migration Act to obtain information from the applicant as to whether he had mannerisms, behaviour, dress style or other indicia that may identify him as having spent time in a western country.
(b) the issue of whether the applicant had mannerisms, behaviour, dress style or other indicia that may identify him as having spent time in the west had not been raised by the applicant, or the delegate, or in the applicant’s first IAA decision.
What has been said in this ground is that, if one looks at those parts of the IAA decision that I have already referred to in paragraph 46 of the Reasons, the IAA is saying that, as a returnee from the west, the Applicant may be in danger, but he could avoid that danger by concealing his association with Australia, and that there was nothing in the material to suggest that the Applicant had any specific trait that would identify him as a returnee.
The submission for the Applicant is that the difficulty with that reasoning is the question of whether he had such identifying characteristics or indicia had not previously been raised. It was not raised in the Applicant’s evidence, in the delegate’s decision, in the first IAA decision or in Judge Jarrett’s judgment. It was submitted that because it was something that was new, and would be totally within the knowledge of the Applicant himself, the information should have been sought from the Applicant in the same way that the Full Court in CRY16 v Minster for Immigration and Border Protection [2017] FCCA 1549 and DZU16 v Minister for Immigration and Border Protection [2017] FCCA 581 have said the IAA should have approached their powers.
The submission is that the IAA had the power to seek information from the Applicant, and it was legally unreasonable for the IAA to not at least consider utilising that power.
In my view, the submission is over reaching. It is not that the IAA “found” that there was nothing in the material to suggest that the Applicant had mannerisms, behaviour or dress style or anything else; it is that the Applicant had not “claimed” to have anything of that nature.
One has to look at the context in which the IAA has looked at this particular area. The IAA has had to look at whether or not there is any risk of serious harm to befall the Applicant because he is a returnee from the West and a failed asylum seeker. It did so.
The IAA identified some of the risks that have occurred to persons who have been identified as coming back from the West. The IAA was simply making the point that there is nothing in the material that would indicate that the Applicant would be easily identifiable as someone who was a returnee from the west. The pivotal sentence is the one in paragraph 46 that starts:
… He has not claimed to has, or exhibits, any behaviour which he would need to modify if he is to avoid being so identified…
Why this is important is that the Applicant has been on notice for quite some time that the delegate has determined that he, the Applicant, would not face any serious harm because of this issue. If it were that the Applicant had some reason to fear that he would easily be identified because he had a physical characteristic, a speech, mannerism or carriage or dress style, it was for the Applicant to make that claim. All the IAA is saying, in paragraph 46, is that there is no such claim; therefore, whilst he may be readily identifiable as a Hazara, there was nothing in the material to indicate he is otherwise identifiable as a returned asylum seeker.
It seems to me that this was not anything new. It was simply an observation that was made, and an observation that was open to the IAA to make, that the Applicant has not claimed anything of the sort.
I do not find that Ground two illustrates any jurisdictional error.
Therefore, I do not find that there has been any jurisdictional error made by the IAA.
I dismiss the applications with costs in the sum of $7,467.00.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 18 January 2019
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