CYZ17 v Minister for Immigration

[2018] FCCA 2279

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2279

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) s.473DD

Cases cited:

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Applicant: CYZ17

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 620 of 2017

Judgment of: Judge Vasta

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Brisbane

Delivered on: 6 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Burrow

Solicitors for the Applicant: Arc Migration

Counsel for the First Respondent: Mr Black

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed on 3 July 2017 as amended on 6 September 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 620 of 2017

CYZ17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 3 July 2017, the Applicant, CYZ17, has asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”) that was made on 16 June 2017. 

2. The background to this matter is that the Applicant was a citizen of Afghanistan.  He claims that he was a Shia Hazara male from the Jaghori District in Ghazni Province.  In 2009, he said that his father was killed when his vehicle hit a landmine while travelling to Kabul.  He claimed that several Hazaras from his village have been kidnapped and killed by the Taliban.  He said that his cousin is employed by the Afghan Government and that in November or December 2012, he was abducted by persons who claimed to be from the Taliban who advised him that he was being taken due to his connection with his cousin.

3. The Applicant said that he was able to escape these people and he then departed Afghanistan one month later. He said that he fears that if he returns to Afghanistan he will be killed by the Taliban on account of his Hazara ethnicity.

4. This was an unusual matter that the IAA looked at.  The delegate had decided that the Applicant could return to Afghanistan but be returned to Kabul.  The IAA in its review of the matter wanted to explore whether relocation could occur to another area, that area being Mazar‑e‑Sharif.  The IAA decided that pursuant to their authority that they should invite a submission from the Applicant in terms that I will get to a little later.

5. In the end, the IAA came to a decision where they found that they did not accept the claim of the Applicant that he was abducted by the Taliban.  The IAA was not satisfied that the Applicant was of any interest to the Taliban because of any connection he had with his cousin. 

6. However, the IAA was of the view that if the Applicant were to be relocated back to Ghazni Province, that they were satisfied that serious harm could befall him, and that is because Ghazni is a volatile area and, because the Applicant was a Hazara, the risk was a real and genuine one.

7. The IAA came to the view after going through all of the information that it had, including information given to it from the Applicant, that the Applicant could be relocated to Kabul or to Mazar‑e‑Sharif.  Because of the finding that he could go back to another part of the country, he did not meet the definition of “refugee”.

8. The IAA then looked at the complementary protection assessment and, again, went through the evidence that it had to see whether or not there was any problem with the relocation and came up with a conclusion at paragraph 62 that:

   I am satisfied that in the circumstances it is reasonable for the applicant to relocate to Kabul or Mazar-e-Sharif, which I find are areas of the country where there is not a real risk that he will suffer significant harm.

   Therefore, he did not meet the criteria for complementary protection. 

9. The application that is before this Court talks of two grounds. They are as follows:

   1. The decision maker engaged in jurisdictional error by failing to take into account and consider relevant information and took into account irrelevant considerations: including but not limited to:

   a. The Post hearing submission

   b. The country information as found by the RRT previously

   2. The decision maker engaged in jurisdictional error by making a decision that was irrational, illogical and unreasonable considering the following factors, but not limited to:

   a. Refusing to consider the additional information

   b. Disregarding findings made by the RRT

   c. Refusal to consider the attitude towards apostasy

   d. Unreasonable views regarding relocations and applicant’s safety

   e. Views on credibility, including rejection of abduction and reason for leaving country

   f. Despite mentioning it, forming an illogical view that, be reference, the UNHCR findings risk to Hazara only relate to travelling by road to return to his home village.

   g. Failing to address the combined risk of being a Hazara with a link to the Police or Security forces (his cousin).”

10. Notwithstanding the manner in which the grounds were drafted, the argument really boils down to this.  With regard to the credibility findings, it is almost but not quite conceded that the IAA could make whatever credibility findings that it wanted as long as those findings were open on the evidence before it, and there does not seem to be much argument in regards to that. 

11. But the main argument really comes down to this. When the delegate had made their decision, the matter was a fast‑tracked decision which meant that the matter had to be referred to the IAA.  The IAA looked at all of the material that the Secretary gives it.  That is, all the material that was before the delegate, because, in effect, the IAA is reviewing to ensure that the delegate has actually considered all that the delegate should and has come up with the correct decision.  It is permissible for a person to give submissions to the IAA and they are invited to do so.

12. However, any new material cannot be accepted by the IAA unless it conforms to the provisions of s.473DD of the Migration Act 1958 (Cth) (“the Act”). That section is set out as follows:

    473DD Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

13. What happened here is that, after being referred to the IAA, the Applicant made further submissions and gave the IAA new information. The IAA considered each of those matters as to whether they accorded with the legislation in s.473DD of the Act. When one goes through what had actually been submitted by the Applicant and what the IAA refused to consider, the following emerges.

14. To the extent that the material provided by the Applicant to the IAA contains submissions, the IAA considered that material. It was not precluded from doing so by s.473DD of the Act. To the extent that the material provided by the Applicant to the IAA contained new information, then there was a “looking through” that material seriatim to see whether it complied with the legislation or not.

15. The Applicant submitted a decision of the then Refugee Review Tribunal (“the RRT”) that was made in May 2015.  With regard to that decision, the IAA was prepared to treat part of that decision as argument to which it could have regard.  But with regard to other matters in the RRT submission, that is, dealing with the factual situation of what was occurring in Kabul, the IAA did not accept that as being new information for which there were exceptional circumstances to justify it, or that it was information that was not and could not have been provided to the Minister before the decision was made, and it certainly did not provide any personal information.

16. The IAA looked at that aspect and made a decision.  The Applicant also had some other country information that had not been before the delegate.  The IAA was not satisfied that this material could not have been provided to the Minister before the Minister made the decision and was not satisfied that exceptional circumstances existed.

17. Now, that did not include all of the country information.  There was country information that post-dated the delegate’s decision and the IAA did find that that material should be considered. 

18. In the statement of the Applicant, there were two aspects that were new information.  The first was a claim that, if he returned to Afghanistan, the Applicant would be viewed by the Taliban as an apostate.  That new information was not before the delegate but the IAA was not satisfied that it could not have been provided to the delegate before the delegate’s decision was made or that it was credible personal information, nor was it satisfied that there were exceptional circumstances for considering the information. 

19. The second aspect of the statement was the Applicant giving reasons for why he considered it unreasonable to relocate within Afghanistan.  The IAA accepted this new information and ended up finding that it could not have been provided to the delegate and, thus, there were exceptional circumstances justifying its consideration. 

20. There was also a 2015 World Hazara Council report.  The IAA was not satisfied that this new information could not have been provided to the delegate before the delegate’s decision was made or that it was credible personal information.  There was no explanation as to why this material was not before the delegate. 

21. So when one looks at what was given to the IAA in those submissions, the IAA has simply rejected the RRT decision as to the factual matters going to country information and has rejected the World Hazara Council report of 2015 which was country information as well. 

22. The IAA, at page court book 136, has informed the Applicant that for the Applicant’s fear of persecution to be well‑founded:

    …the real chance of persecution must relate to all areas of your receiving country, Afghanistan. Additionally, according to section 36(2B)(a) of the Act, there is taken not to be a real risk that you will suffer significant harm in Afghanistan if it would be reasonable for you to relocate to an area of the country where there would not be a real risk that you will suffer significant harm.

    You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection.

23. And there are a number of dot points talking about the emergent threat of Islamic State and what had occurred, a report from the Afghanistan Analysts Network on recent attacks, some statistics as to how many Islamic State fighters there were in Afghanistan from late 2015 and reports from another intelligence review forecast about Islamic State.  It is quite obvious from those four aspects that the IAA was wanting the Applicant to be able to comment upon the state of IS in Afghanistan.  The IAA said this, that:

    The above new country information is relevant as it may lead the IAA to find that there is not a real chance or real risk  that you will suffer significant harm, of you being seriously harmed by Islamic State, the Taliban, or any other anti‑government elements for reasons of your religion or ethnicity in major urban areas like Kabul and Mazar-e-Sharif in Balkh Province and, therefore, that your fear of persecution may not relate to all areas of Afghanistan, and that future attacks on the Shia population are likely to be occasional or infrequent and that Islamic State’s capacity to perpetuate attacks is limited and being weakened and that any such attacks are unlikely to result in the emergence of sectarianism in the country. 

24. The letter went on:

    It may also be relevant to the issue of whether you could relocate to another area of Afghanistan as the IAA may conclude that it would be reasonable for you to relocate to an area such as Kabul or Mazar-e-Sharif where there is not a real risk of you suffering significant harm.  Subject to your comments, this new information would be the reason or part of the reason for affirming the decision not to grant you a protection visa.

25. Then in bold it has written:

    You are also invited to comment on the following new information which is relevant to whether you would face a real chance or real risk of significant harm in Mazar-e-Sharif, the capital of Balkh Province, and whether it would be reasonable for you to relocate to this city to avoid significant harm.

26. And then there are some other bits of information to which comment is made. The Applicant did provide such comments and presented new information and that information was considered by the IAA.  The complaint here is that the IAA should have also considered the country information in the Hazaras report and the country information contained within the RRT decision. 

27. The Applicant, it is submitted, was of the view that the AAT already had that information before it and would consider it in such a review and so, therefore, did not include material that it had already submitted back to the IAA.  It is submitted that because the IAA did not consider the Hazaras report and the factual component of the RRT decision that, therefore, the Applicant has not been heard and has not had the opportunity for the IAA to consider all of the claims. 

28. It was submitted that if the Applicant had, as part of the information submitted to the IAA as a result of the invitation letter that I have just referred to, submitted that material which the IAA had decided not to consider, the IAA would have had to consider that material.  Therefore, it is submitted that there has been a fundamental unfairness to the Applicant in this case. 

29. It seems to me though that the matters that the IAA was looking at were matters to do with the activities of Islamic State and the reasonableness of a relocation to Mazar-e-Sharif.  With regard to those two specific matters, the IAA recognised that it had not such information from the Applicant as it needed and so, therefore, used the power that it did have to invite the Applicant to make a further submission.

30. The Applicant claims that this situation is analogous to the one that was before the IAA in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. This decision, however, is different. In that decision the IAA knew that it did not have information concerning the reasonableness of an Applicant’s relocation to a particular area of the country and that the Applicant was likely to have such information and that that issue of relocation to the particular area was not explored by the delegate at departmental interview. It was also not the subject of the delegate’s findings.

31. In the CRY16 circumstances, it was unreasonable for the IAA to not even consider the exercise of the statutory discretion to get documents or information. But in this case, the delegate accepted that the Applicant would be at risk if he returned to the home village but not if he relocated to Kabul.  The IAA essentially reached the same view though was concerned that, because Mazar-e-Sharif was not specifically considered, that it should give the Applicant an opportunity to comment on that information as to whether the Applicant would face a real chance or real risk of harm in Mazar-e-Sharif.

32. Whilst the Applicant says that the IAA was trying to give lip service to CRY16 (Supra), it should be seen that the decision in CRY16 (Supra) by the Federal Circuit Court had not been given by the time that the IAA decision was given in June 2017.  The Federal Circuit Court made their decision in July 2017 in CRY16 (Supra) and the Full Federal Court gave its decision in December 2017.  So CRY16 (Supra) could not have been on the mind of the IAA at that time. 

33. Therefore, it seems to me that the IAA was acting totally within its statutory obligations for fairness and natural justice in doing what it has done.  I do not find that they have, to use the words of the application – made a decision that was irrational, illogical, and unreasonable.  They have looked at all information that they were supposed to look at and have acted in accordance with the legislation itself.

34. Having looked at the information that it was allowed to look at, having, in my view, exercised the power under s.473DD in proper circumstances, the IAA has come up with a decision that was open to it on the evidence before it.

35. Because of this I find that there is no jurisdictional error and I, therefore, dismiss the application with costs in the sum of $7,328.00.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:18 October 2018