CYY18 v Minister for Immigration and Anor - [2020] FCCA 2835

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYY18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2835

Catchwords:
MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – where the applicant claims the Authority did not properly consider new information and failed to intellectually engage with or “glossed over” relevant material – where the Authority adequately explained reasons for not considering new information – where the Authority’s reasoning does not constitute a failure to engage with relevant material – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss 36(2B)(c), 473DD

Federal Circuit Court Rules 2001 (Cth), Sch 1 Pt 3 Div 1 Item 3.

Cases cited:

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221;

[2017] FCA 958

Khan and Minister for Immigration, Local Government, Domestic Affairs (1987)

14 ALD 291; [1987] FCA 457

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010]

HCA 48

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

FCA 372

Applicant:

CYY18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

ADG 242 of 2018

Judgment of:

Judge Young

Hearing date:

30 March & 8 September 2020

Date of Last Submission:

8 September 2020

Delivered at:

Darwin

Delivered on:

16 October 2020

REPRESENTATION

Counsel for the Applicant:

Mr Churches

Solicitors for the Applicant:

Beena Rezaee Legal & Migration

Counsel for the Respondents:

Ms Milutinovic

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”
The applicant is to pay the first respondent’s costs in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 242 of 2018

CYY18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Immigration Assessment Authority (“the IAA” or “the Authority”) made on 22 May 2018 to affirm a decision of the Minister’s delegate made on 4 September 2017 to refuse the applicant a protection visa.
The applicant is a Hazara Shia from Maidan Wardak Province in Afghanistan. He arrived in Australia in 2013 and subsequently made a refugee protection claim. His claims included that he had operated a shop selling electrical goods in his home province which had evoked the hostility of a local Shia mullah who condemned the sale of electrical goods as un-Islamic. He asserted that his shop had been the subject of an arson attack. He also claimed to have been kidnapped by the Taliban while returning from Kabul with electrical goods. He said he was taken to Taliban territory and held prisoner. He said that he and another prisoner had managed to break the door of their prison and escape by hitchhiking away. He also claimed that his father had been kidnapped and disappeared in 2008 at the hands of Kuchi nomads who were fighting with Hazara people of his village or region about grazing lands. He also made more general claims that he was at risk of harm from the Taliban or religious extremists because he was a Hazara or a Shia and as a returnee from a Western country.
The delegate rejected most of the applicant’s specific claims but he accepted that the applicant had been criticised or condemned by a Shia mullah as a result of operating an electrical goods store in Maidan Wardak and was likely to be persecuted in Maidan Wardak in consequence. The delegate found that the applicant would not be persecuted in Kabul and it was reasonable for him to relocate.
The Authority also disbelieved or rejected the applicant’s specific claims, including his claim to fear harm from the Shia mullah or his supporters, and, consistently with that, reached a different conclusion to the delegate about the risk of harm to the applicant in Maidan Wardak. It found that the applicant was at remote risk from generalised violence in that province or at the same risk as the population generally and did not face a real chance of harm on the basis of race, religion, nationality, membership of a particular social group or political opinion. It also found that the applicant was not owed a complementary protection obligation.
In relation to the applicant's claim arising from his Hazara ethnicity and Shia faith the Authority accepted that there had been many incidents of violence and counter violence in Maidan Wardak province between Kuchi, a pastoral nomad group, and Hazara people over land disputes. The Authority did not accept that the applicant was at risk of harm because of these disputes or that they were related to a convention ground. The Authority accepted that in 2016 and 2017 in Afghanistan Shia people had been vulnerable to attack by Islamic State, particularly in Kabul and Herat. The Authority concluded there was no record of any attacks on Shia or Hazara people in Maidan Wardak by Islamic State or its affiliates.
The Authority accepted that the applicant was at risk of kidnap travelling on roads in Maidan Wardak but these kidnaps related to the land disputes with the Kuchi people where kidnapping for hostages was undertaken. The Authority did not accept that the applicant was at risk of travelling with electrical goods because he ceased operating his electrical store before leaving for Australia.
The Authority concluded that the risk of harm to the applicant while travelling on roads in Maidan Wardak was remote and the applicant lacked any profile likely to make him a particular target.
The Authority found that the risk of harm faced by the applicant was not by reason of race, religion, nationality, particular social group or political opinion.
In relation to the applicant’s complementary protection claims the Authority concluded that the applicant was exposed to a remote, and therefore not real, risk of significant harm from general violence in Afghanistan and his home province of Maidan Wardak. It accepted that there were risks of harm from IEDs and landmines but that these were risks faced by the population generally and therefore did not give rise to a complementary protection obligation by reason of section 36(2B)(c) of the Migration Act.
New information
In reaching its conclusion the Authority considered various items of new information pursuant to s 473DD of the Migration Act and refused to consider other information. This information was submitted to the Authority by the applicant in three batches on 3 October 2017, 7 May 2018 and 21 May 2018.
On 3 October 2017 the applicant raised claims about his mental health which had not been raised with the delegate and which were not supported by medical or other evidence. The Authority was not satisfied there were exceptional circumstances to justify considering that material. The applicant also submitted country information which pre-dated the delegate’s decision. The Authority declined to consider this. The applicant submitted three country information reports from Professor Maley dated 22 December 2016, 1 October 2017 and 4 April 2018. The Authority declined to consider the earlier reports but considered the latest one on the basis that it contained similar information to the earlier ones but was more current. The Authority was satisfied there were exceptional circumstances to justify consideration of two DFAT reports submitted by the applicant.
The applicant submitted two country information reports dated 26 September 2017 and April 2018 from a Mr Swincer of the Blue Mountains Refugee Support Group. The Authority said it was satisfied there were exceptional circumstances to justify considering the earlier report. The Authority did not expressly state that it considered there were exceptional circumstances to justify considering the second report but, in fact, appears to have done so.
On 9 October 2017 the applicant provided a statutory declaration to the Authority clarifying some purported inconsistencies and misunderstandings arising before the delegate. The Authority appears to have treated this as a submission.
As noted, the Authority did not, as the delegate had done, accept that the applicant was at risk in his home province of Maidan Wardak. The Authority found that the applicant had provided information on the (then) current situation in Afghanistan, as well as Kabul specifically, but that information did not specifically refer to Maidan Wardak. The Authority obtained a more recent report published by the European Asylum Support Office (“EASO”) that dealt with Maidan Wardak specifically. The applicant was invited to comment on that information.
On 7 May 2018 the applicant responded to that invitation. He provided more country information, including information from Professor Maley and Mr Swincer. The Authority treated the response which, in summary, asserted that the applicant had a well-founded fear of persecution in Maidan Wardak and Afghanistan generally, as new information for the purposes of s 473DD and considered it.
On 21 May 2018 the applicant provided further information. The Authority was satisfied the information post-dated the delegate's decision and could not have been provided to the Minister before the decision was made. The material included a Human Rights Watch report, “No safe place – insurgent attacks on civilians in Afghanistan" dated 2018. The Authority declined to consider this information and described it at [17] of the reasons for decision as follows:
The attachments refer to recent events in Afghanistan, in particular in Kabul and Herat, but none of the attachments refer to or consider the situation in Maidan Wardak. I take into account that there is a substantial amount of information before me in relation Maidan Wardak, including information provided by the applicant earlier, and having regard to these factors, I am not satisfied that there are exceptional circumstances to justify considering this new information.
The grounds of review are as follows:
1. The IAA did not properly reach a state of satisfaction when exercising its powers under s 473DD(a) and (b)(ii) of the Migration Act 1958 (Cth), in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering some of the new information provided by the applicant’s representative (“the new information”), nor did it give proper, genuine and realistic consideration to whether the new information was credible personal information not previously known to the Minister which, had it been known, may have affected the applicant’s claim.
Particulars
(i) [this ground was abandoned].
(ii) The IAA referred (at [17]) to new information provided by the applicant’s agent in May 2018. The IAA said there were no exceptional circumstances to justify considering this material, which was dismissed as dealing with Kabul and Herat, but not Maidan Wardak, but a general overview of matters in Afghanistan was reflected on by the IAA (at [50]) which makes the May 2018 information relevant.
2. The IAA ignored relevant considerations being (i) the material in the covering letter from the applicant’s agent (Beena Rezaee Legal and Migration) dated 4 May 2018 (“the covering letter”); (ii) the attached report of Mr Graeme Swincer of April 2018 (“the 2018 Swincer report”); and (iii) the report by Professor William Maley dated 4 April 2018 (“the 2018 Maley report”). The IAA claimed that it “considered the April 2018 report [i.e. the 2018 Maley report] further below”, but it did not do so, beyond a bare reference. Any references by the IAA to the covering letter, the 2018 Swincer report and the 2018 Maley report in the context of the applicant’s claim to fear persecution for his Hazara ethnicity or his Shi’a religion have failed to involve actual intellectual engagement.
Consideration
The applicant’s counsel’s submissions focused on the Human Rights Watch report, “No safe place – insurgent attacks on civilians in Afghanistan", provided by the applicant on 21 May 2018. Mr Churches accepted that the description by the Authority of the information was accurate, that is, it referred to (then) recent events in Afghanistan, in particular, Kabul and Herat, but none of the attachments specifically referred to or considered the situation in Maidan Wardak. Mr Churches accepted that the Human Rights Watch report referred to an increase in general violence throughout Afghanistan in 2016 and 2017, as had the further country information from Professor Maley and Mr Swincer. When asked how the Human Rights Watch report added to that information, Mr Churches said that, notwithstanding the absence of substantially different information to the Maley and Swincer reports or further information about Maidan Wardak, the significance of the Human Rights Watch report was that it provided more detail about Afghanistan, particularly Kabul and Herat.
The Authority accepted at [51] that there had been:
…a recent and significant increase in high casualty attacks against Afghanistan’s Shi’a population in Kabul and Herat, as well as on the eastern border with Pakistan.
It said most of the attacks against Shias and Hazaras had been claimed by Islamic State in Khorasan Province (“ISKP”). Relying on DFAT country information the Authority accepted that Shias were particularly vulnerable when assembling in large and identifiable groups, such as demonstrations or when attending mosques during major religious festivals. The Authority said:
…the information provided by the applicant, including the reports of Mr Swincer and Professor Maley, also indicate an increase in risk to Shias and Hazaras of targeted violence in Kabul and certain other parts of Afghanistan.
It is apparent that the Authority had up to date country information before it from the EASO and from Mr Swincer and Professor Maley showing that Shias and Hazaras were at risk of attack in much of Afghanistan. In the circumstances, it is difficult to see how consideration of the Human Rights Watch report, which was to the same effect and focused on Kabul and Herat, was significantly different to the thrust of the material the Authority accepted as new information and considered. Further, the material was provided by the applicant after the Authority invited him to comment on the EASO report dealing with Maidan Wardak. It was unresponsive to that invitation and provided material that was substantially a duplication of other information before the Tribunal.
In my view, the Authority’s reasons for not being satisfied there were exceptional circumstances to justify considering this information were adequately explained and it gave proper, genuine and realistic consideration to that information. I am not satisfied that the Authority’s refusal to consider the Human Rights Watch report or the other information was based on an unduly narrow approach to whether there were “exceptional circumstances” to justify consideration of the information: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221. I am not satisfied there has been jurisdictional error.
In ground two it was alleged that the Authority failed to actively intellectually engage with the new information provided to the Authority in the applicant's response received on 7 May 2018, including the covering letter, the report of Mr Swincer dated 2018 and the report of Professor Maley dated 2018. It was submitted that the Authority "glossed over" this material or dealt with it in a cursory way evidenced by the bare reference to this material at paragraph [51] of the Authority’s reasons.
In oral submissions Mr Churches for the applicant identified three particular points which were said to be of significance to the applicant's situation and required active consideration by the Authority.
These were, in summary, (1) a claim about links between Kuchi nomads and the Taliban to the effect that the latter exploited the “feud” between the Kuchi and the Hazara to attack the Hazara; (2) a claim contained in the applicant's agent’s covering letter dated 4 May 2018 (court book p 545), which said that the Taliban had an active presence in Maidan Wardak and that it controlled “70% of the districts in Maiden Wardak in March 2017”; and (3) that information from Professor Maley referred to a sharp increase in 2015 in the abduction and killings of Hazara in Maidan Wardak.
The information about the first claim came from the EASO report of December 2017 which the Authority had obtained of its own motion and which the Authority invited the applicant to comment on. The EASO report, according to the applicant's agent’s letter and apparently in reference to Maidan Wardak, did:
…not identify any major incidents of generalised violence which harm civilians. However, the report details the many low-level security incidents which harm civilians (court book, p 545).
The agent’s letter also refers to a report by Denise Phillips which apparently referred to disputes about land, including disputes between Hazaras and Kuchis in Maidan Wardak. According to the letter the report said:
The Afghanistan Analysts Network suspect that the Taliban may be exploiting this century-old feud [with the Hazaras] to incite and support attacks by their fellow Pashtuns, the Kuchi, against Hazaras (court book, p 546).
The information about the second claim was contained in the EASO report obtained by the Authority which the applicant had been invited to comment on.
The information about the third claim was contained in Professor Maley’s report dated 4 April 2018 which said that:
Between 1 January and 31 December [2015], Anti-Government Elements abducted at least 146 members of the Hazara community in 20 separate incidents. All but one incident took place in areas with mixed Hazara and non-Hazara communities, in Ghazni, Balkh, Sari Pul, Faryab, Uruzgan, Baghlan, Wardak, Jawzjan and Ghor provinces.
The Maley report went on to say that “…it is a serious mistake to conclude that Afghanistan is safe for Hazaras” and referred to attacks in Kabul against participants in a religious festival in 2011 and in Mazar-i-Sharif in the same year. The report referred to attacks against peaceful Hazara demonstrators in Kabul in 2016, in Mazar-i-Sharif and in Herat. It also referred to the kidnap and torture of a person who had returned from Australia and referred to another similar incident in 2014 when an Australian citizen of Hazara origin was murdered by Taliban militants in an apparently targeted killing.
Mr Churches for the applicant said that the Maley and Swincer information indicated that every Hazara Shia was at risk in every part of Afghanistan.
At [51] of the Authority's reasons it summarises its findings in relation to the various sources of country information:
However, the recent reporting from DFAT, EASO and other sources (including those referred to by the applicant) indicates an increasing risk to Shi’as and Hazaras from Islamic State and its associated groups, such as Islamic State in the Khorasan Province (ISKP). The information before me reports there has been a recent and significant increase in high casualty attacks against Afghanistan’s Shi’a population in Kabul and Herat, as well as along the eastern border with Pakistan. Most of the attacks against Shi’as and Hazaras have been claimed by ISKP. In 2017, DFAT assessed that the number and scale of attacks in late 2016 and early 2017 demonstrated that Shi’as, both Hazara and non-Hazara, now face a risk of being attacked by ISKP based on their religious affiliation. DFAT assessed that Shi’as are particularly vulnerable when assembling in large and identifiable groups, such as demonstrations or when attending mosques during major religious festivals. The information provided by the applicant, including the reports of Mr Swincer and Professor Maley also indicate an increasing risk to Shi’as and Hazaras of targeted violence in Kabul and certain other parts of Afghanistan.

At [53], after referring to the EASO report, the Authority noted that there had been a decrease in the number of civilian casualties in Maidan Wardak in 2017 compared to 2016 and Maidan Wardak reported "the ninth lowest total of civilian casualties among Afghanistan's 34 provinces". By way of comparison, Kabul reported a 4% increase in civilian casualties. The Authority observed that the leading cause of casualties in the province was ground engagements.
At [54] the Authority said:
Although DFAT does not give a clear indication about the level of risk, I accept that the security situation is elevated for Shi’as living in Kabul and certain other areas of Afghanistan; however, I take into account that on the material before me, including that provided by the applicant, there have been no recorded instances of targeted attacks by ISKP or any other IS affiliates on Shi’as or Hazaras in Maidan Wardak. I accept that it cannot be ruled out that ISKP or a similar group could strike within Maidan Wardak but given the lack of any information to indicate that the ISKP and its affiliates are extending their areas of operation into that province, I find that the chance of the applicant being harmed by ISKP or other such groups in his home area is remote, and therefore not a real chance.
Counsel for the applicant said this paragraph demonstrated that the Authority had failed to engage with the Swincer and Maley country information which indicated that risks against Hazaras had increased in Afghanistan generally and that this constituted a failure to actively engage with the material or constituted a failure to undertake a “proper, genuine and realistic consideration to the merits of the case”: Khan and Minister for Immigration, Local Government, Domestic Affairs (1987) 14 ALD 291, applied by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 174, [26].
While the Maley information, in particular, refers to specific attacks on Shias or Hazaras in particular areas of Afghanistan, especially Kabul, Mazar-i-Sharif and Herat, the overall thrust of the report is that there are groups in Afghanistan ideologically, politically or religiously motivated to harm Hazaras and Shias and to target them for attack. Although I did not find an express formulation in these terms, it might fairly be said, as counsel for the applicant maintained, that the thrust of the Swincer and Maley reports is that every Shia or Hazara is at risk in every part of Afghanistan. The response of the Authority to this information was to undertake a reasonably detailed analysis of conditions in Maidan Wardak province. It concluded that most of the attacks against Shias or Hazaras in Afghanistan on religious or ethnic grounds were carried out by IS or its affiliates and there had been no evidence of IS attacks in Maidan Wardak, implying that the risks to Shias or Hazaras in Maidan Wardak were generally not from targeted attacks. The Authority acknowledged that Shias and Hazaras had been killed and injured in Maidan Wardak but found they were primarily casualties of ground attacks or generalised warfare. It did so on the basis of specific information, including the EASO report and DFAT information.
In relation to the Authority’s conclusion about the general risks to the safety of Shias or Hazaras in Maidan Wardak, the Authority reasoned in the way it did on the basis of specific information before it, particularly the EASO report and, by implication at least, preferred that country information to the country information provided by Mr Swincer and Professor Maley: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372. The Authority has not accepted the general thrust of the Swincer and Maley reports but its reasoning does not, in my opinion, constitute a failure to actively engage with that material or give it proper and genuine consideration in relation to the applicant's circumstances as a resident of Maidan Wardak. It has preferred country information that, while clearly demonstrating that the people of Maidan Wardak are subjected to generalised warfare, indicates that the risks to the applicant are primarily from such generalised warfare and instability and these factors do not constitute a risk because of race, religion, nationality, membership of a particular social group or political opinion. The Authority concluded that the applicant was not a refugee and that he was not owed complementary protection obligations because the risk he faced from generalised warfare was one faced by the population of Afghanistan generally and not faced by him personally. It concluded that s 36(2B)(c) of the Migration Act applied.
I am not satisfied the Authority has committed jurisdictional error. The application will be dismissed and an order for costs will be made according to Schedule 1, Part 3, Division 1, Item 3 of the Federal Circuit Court Rules.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 16 October 2020