CZH18 v Minister for Home Affairs

[2019] FCCA 1478

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZH18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1478

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Afghanistan – applicant’s fear found not to be well founded – whether the Authority failed to consider a particular social group claim – no jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), s.5J

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Singh v Minister for Home Affairs [2019] FCAFC 3

Applicant: CZH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 301 of 2018

Judgment of: Judge Driver

Hearing date: 28 May 2019

Delivered at: Sydney by telephone link to Perth    

Delivered on: 20 June 2019

REPRESENTATION

Counsel for the Applicant: Mr D Blades

Solicitors for the Applicant: Chisholm Law

Counsel for the Respondents: Ms S J Oliver

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application as amended on 30 November 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 301 of 2018

CZH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 17 May 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Afghanistan born on 1 January 1983.[1] He is of the Sunni Muslim religion and Pashtun (Afghan) ethnic group.[2] He departed Afghanistan in February 2013 and arrived on Christmas Island on 3 May 2013.[3]

   [1] Court Book (CB) 3, 19

   [2] CB 6

   [3] CB 178

4. At a Case Assessment & Biodata Interview conducted on 15 May 2013,[4] the applicant told the Minister’s Department that he had left Afghanistan because:[5]

   I am a journalist, I was writing about the TALIBAN so they threatened me. Journalists are not safe, even the government cannot protect journalists. The world knows we are not safe.

   [4] CB 33-37

   [5] CB 35

5. The Minister’s Department invited the applicant to apply for a Temporary Protection Visa (TPV) or a Safe Haven Enterprise Visa (SHEV) on 30 June 2016.[6] The applicant received some assistance from The Humanitarian Group, a non-profit community legal centre, in preparing an application for a TPV.[7]

   [6] CB 39-40

   [7] CB 41, 91, [11]

6. The applicant lodged the application for a TPV dated 2 May 2017, which was stamped as received on 10 May 2017.[8]  The Minister’s Department acknowledged receipt of the application on 23 May 2017.[9]

   [8] CB 42-96

   [9] CB 97-104

Claims for protection

1. On 5 May 2013, the applicant participated in an irregular maritime arrival entry interview (“entry interview”).[10]  In that entry interview, the applicant was asked what was the main reason he left Afghanistan. His answer is recorded as:[11]

   A journalist must say the truth and not be against the government or pro government and must serve the country from time to time I was writing about Taliban. Because of that I was threatened. Because of that I must leave the country because a few times I was threatened.

   [10] CB 1-17

   [11] CB 11

2. The applicant further claimed that he had received threats by telephone and by a letter, in 2010 and 2011 when he was writing reports about the Taliban.[12]  When asked what the threats said, the applicant is recorded as answering:[13]

   In the threat letter it said you are writing against us, you stop the writing and you can read that letter later. A few times I was told by telephone not to write against them anymore, and when I received the threat letter I decided to leave the country.

   [12] CB 11

   [13] CB 11

3. The applicant was further asked whether, apart from what he had already said, did anything else happen to make him leave Afghanistan. The applicant is recorded as answering:[14]

   Afghan government could not protect journalist and their life. All journalists, those who are killed, the government is not able to find the people who killed.

   [14] CB 11

4. In his statement of protection claims submitted with the visa application, the applicant made the following claims:[15]

   a)his main reason for seeking protection is fear of harm at the hands of the Taliban on account of his status as a journalist working in Kabul, Afghanistan;[16]

   b)he had worked as a journalist from 2010 until he left Afghanistan in 2011;[17]

   c)throughout his career as a journalist, he would report on things the Taliban was doing in Afghanistan, such as kidnapping, rape and killing. He stated as an example that he had written articles for “Sobot” stating how dangerous and bad the Taliban is, and asking why they had to tolerate the things that the Taliban do;[18]

   d)when his employers would publish his stories[19] or published or broadcast a story about the Taliban,[20] the employer would receive a threat to stop reporting on the Taliban.[21] The threats would include that, if they did not stop reporting on the Taliban, they would blow up the building where the media organisation was,[22] or that they would be killed;[23]

   e)whilst he was working as a journalist in Kabul, journalists everywhere would be threatened and killed by the Taliban because they reported on the Taliban;[24]

   f)if he returned to Afghanistan, he would unable to obtain work other than journalism.[25] Working as a journalist would put him at risk of harm by the Taliban,[26] and he believed he would be targeted because his name would be published in newspapers, and as a result, he would be easily identifiable;[27] and

   g)he believes things have gotten more dangerous for journalists in Kabul since he left Afghanistan.[28]

   [15] CB 90-95

   [16] CB 90, [2]

   [17] CB 93, [33]

   [18] CB 93, [34]

   [19] CB 93, [35]

   [20] CB 93, [36]

   [21] CB 93, [35]-[36]

   [22] CB 93, [35]

   [23] CB 93, [36]

   [24] CB 93, [37]

   [25] CB 94, [44]

   [26] CB 94, [45]

   [27] CB 94, [46]

   [28] CB 94, [47]

5. The applicant also stated, in relation to his recorded answers in the entry interview in relation to having received a threatening letter from the Taliban, that he did not recall saying that, and did not recall that happening.[29]

   [29] CB 91, [9]

6. The applicant summarised his claims as follows:[30]

   In summary, I fear harm throughout the whole of Afghanistan including killing at the hands of the Taliban on the basis of my status as a journalist in Kabul, Afghanistan. In the past I have been threatened by my feared persecutors and friends of mine who work as journalists have been killed. I cannot rely on the protection of the Afghan state and cannot safely relocate anywhere else in Afghanistan.

   [30] CB 95, [51]

7. On 24 October 2017 the Minister’s Department sent a letter to the applicant inviting him to attend an interview to discuss his visa application.[31] The interview was conducted on 24 November 2017.[32]

   [31] CB 107-108

   [32] CB 140-141

8. At some point the Minister’s Department accessed the applicant’s Facebook page.[33] The applicant informed the officer who conducted the interview of the name that he uses for his social media profile on Facebook.[34]

   [33] CB 108-139

   [34] CB 152

9. On 20 March 2018, the Minister’s Department wrote to the applicant to advise that his TPV application had been refused by the delegate.[35] The delegate was not convinced the applicant had operated in the field of journalism to the level stated in his claims. The delegate did accept that the applicant had undertaken education and journalism and had worked in the media industry. However, the delegate found that the applicant had embellished his role at the various media companies and contrived claims that he wrote articles that were critical of the Taliban.[36] Overall, the delegate found that the applicant does not have a profile that would bring him to the adverse attention of the Taliban or any other insurgent group based on his previous employment as a journalist and that he could return and live with his family in Kabul.[37]  The delegate also found that the applicant did not meet the complementary protection criteria.[38]

   [35] CB 146-148

   [36] CB 155

   [37] CB 159

   [38] CB 165

10. On 26 March 2018 the Authority wrote to the applicant to advise that the refusal of the TPV application had been referred to the Authority.[39]

    [39] CB 171-172

11. On 17 May 2018 the Authority wrote to the applicant to advise that it had affirmed the refusal of the TPV application.[40]

    [40] CB 176

12. A copy of the Authority’s statement of reasons for decision is at CB 177-190.  The Authority’s findings included the following:

    a)it accepted that the applicant had studied journalism at university and graduated in 2010;[41]

    b)it accepted that the applicant may have written some general articles during his employment;[42]

    c)it took into account that although the applicant “studied as a journalist”, he was employed for a period of less than two years.[43] It also took into account that the applicant has not claimed to have written or published any articles about Afghanistan, the Taliban or the conflict on social media or in any other form, during the 10 months after he ceased work, or in the five years that he has been in Australia. The Authority did not take into account however that the applicant’s Facebook account accessed by the Minister’s Department showed that he had shared a post on Facebook on 19 October 2016 concerning corruption in Afghanistan and which referred to the Taliban;[44]

    d)it did not accept that the applicant had written or published any articles of significance or had attracted any adverse attention;[45] and

    e)it was satisfied that the applicant will not be of any adverse interest to any group or person because of his previous work as a journalist, should he return to Afghanistan.[46]  

    [41] CB 180, [11]

    [42] CB 181, [19]

    [43] CB 182, [24]

    [44] CB 116

    [45] CB 181, [19]

    [46] CB 182, [22]

13. The Authority’s overall finding was:[47]

    Having regard to all of the evidence and information above, I am satisfied that the applicant does not face a real chance of harm because of his past employment as a journalist; his possible future employment in Afghanistan; his father’s past employment; any association with his father; being a returned asylum-seeker who has spent time in the West; or from generalised violence in Kabul.

    [47] CB 184, [35]

14. Accordingly, the Authority found that the applicant was not entitled to protection under either the refugee or complementary protection grounds.[48]

    [48] CB 185

The present proceedings

1. These proceedings began with a show cause application filed on 7 June 2018. The applicant now relies upon an amended application filed on 30 November 2018. The grounds in that application are:

   1. The IAA reviewer has fallen into jurisdictional error by misapplying the legal test under ss5J and 36 of the Migration Act. The IAA reviewer considered the facts under one of the grounds articulated in the test but not under the more relevant ground.

   a. The decision maker considered whether the applicant would face a risk of harm as a person holding an imputed political opinion through his journalism. The decision maker failed to consider whether the applicant would face harm due to his membership of a particular social group. The IAA reviewer found at [19] that [the applicant] was a journalist, however did not consider whether this fact was grounds for a protection claim.

   2.Further, in misapplying the test the IAA reviewer has fallen into jurisdictional error by failing to consider relevant information

   a. The IAA reviewer has failed to consider the country information relevant in determining whether a member of the social group of journalists in Afghanistan has a well-founded fear of serious harm. The IAA reviewer has considered country information that relates to whether people writing in opposition of the Taliban are likely to be targeted. The relevant country information relates instead to whether journalists as a group are at risk in Afghanistan.

   3.In misapplying the test, the IAA reviewer has also fallen into jurisdictional error by considering irrelevant information.

   a. The IAA reviewer has erred in considering whether [the applicant’s] articles have led directly to threats to his employers, whether he has signed his name on his articles, and whether he has published articles of significance that have attracted adverse attention. The decision maker considered at [18]-[19] that she does not find that [the applicant] has “written or published any articles of significance or that have attracted adverse attention”. These considerations are irrelevant in determining the risk that [the applicant] faces as a member of a particular social group. They are instead tests of whether [the applicant] is identifiable as holding an imputed political opinion.

   b. The IAA reviewer has erroneously considered whether [the applicant] would continue to work as a journalist on his return to Afghanistan.  [The applicant] is already an identifiable member of the social group of journalists in Afghanistan as he has journalism training and has worked as a journalist in the past. It is not a relevant consideration in determining whether [the applicant] could obtain different work if he returns to Afghanistan.

2. In addition to the court book lodged on 27 July 2018 I have before me as evidence an additional bundle of documents omitted from the court book which became Exhibit A1. With one exception, the documents are in a foreign language using the Arabic script (possibly Dari) but there is one document in the English language being an extract from a publication.

3. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 28 May 2019.

Consideration

1. The applicant concedes that his case turns predominantly on the first ground of review, in which he asserts that the Authority failed to consider his particular social group claim. The applicant contends that he articulated a claim of being a member of the particular social group of journalists which the Authority did not consider. The applicant concedes that the second and third grounds depend upon the acceptance of the first ground. Thus, the amended grounds of review essentially focus on one issue, namely the Authority’s failure to consider the applicant’s claims for protection against the criterion in s.5J(1)(a) of the Migration Act1958 (Cth) (Migration Act) that the applicant fears being persecuted for the reason of his membership of the particular social group of journalists.

2. The Minister contends that, while it may be accepted that such a particular social group claim arise on the material before the Authority, the Authority did not err by failing to consider the claim.

3. In Singh v Minister for Home Affairs[49] the Full Federal Court made the following relevant observations:

   …a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

   ·a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197ALR389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;

   ·a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004]FCAFC263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or

   ·a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.

   [49] [2019] FCAFC 3 at [34]

4. The Full Federal Court went on to state:[50]

   [50] at [36]-[37]

   The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

   In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

   (1)First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

   (2)Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b)it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c )a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

1. In the present case, I accept the Minister’s submission that it was not necessary for the Authority to specifically consider any claim to fear persecution for reason of the applicant’s membership of the particular social group of journalists in Afghanistan, as this integer of the applicant’s claim to fear harm was subsumed in the Authority’s findings of greater generality.[51]

   [51] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]

2. In Applicant WAEE at [47] the Court stated:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

3. In this case, the Authority:

   a)whilst prepared to accept that the applicant may have written some general articles during his employment, did not accept that he had written or published any articles of significance or that attracted any adverse attention;[52]

   b)found that the applicant’s evidence was that he had published anonymously or under a pseudonym,[53] and observed that the applicant had never personally been threatened, and that he had never claimed that any of his employers were subject to any threats because of any articles he had written;[54]

   c)was satisfied that the applicant had not suffered any harm, threats or harassment from any group or individual because of his employment as a journalist, or because of any articles he may have written,[55] and as such he did not have any adverse profile whilst working as a journalist.[56]  The Authority was further satisfied that the applicant would not be of any adverse interest to any group or person because of his previous work as a journalist;[57]

   d)did not accept that the applicant had stopped working as a journalist because of a fear of harm;[58] and

   e)did not accept the applicant’s claim that he would resume working as a journalist if he returned to Afghanistan.[59]

   [52] CB 181, [19]

   [53] CB 182, [22]

   [54] CB 182, [22]

   [55] CB 182, [22]

   [56] CB 182, [22]

   [57] CB 182, [22]

   [58] CB 182, [22]

   [59] CB 182-183, [25]

1. The Authority concluded that, having regard to all of the evidence and information, it was not satisfied that the applicant faced a real chance of harm because of (relevantly and amongst other things) his past employment as a journalist or his possible future employment in Afghanistan.[60]

   [60] CB 184, [35]

2. The Minister observes that the Authority did, in so far as it was necessary to do so (given the matter had been subsumed in findings of greater generality and/or because the factual premise upon which the claim rests had been rejected),[61] consider the applicant’s claim that he feared persecution as a journalist.

   [61] Applicant WAEE at [47]

3. In the Minister’s submission, an inference ought not be drawn that the Authority failed to consider an integer of the applicant’s claims, given the Authority’s reasons are otherwise comprehensive and the fear of persecution as a journalist was identified and considered by the Authority.

4. There is merit in the Minister’s submissions.  First, it is apparent from [8] of the decision[62] that the Authority understood the terms of s.5J of the Migration Act, including the requirement that the essential and significant reason or reasons for the persecution claimed is race, religion, nationality, membership of a particular social group or political opinion.

   [62] CB 179

5. Secondly, the decision of the Authority is predominantly directed at a consideration of the applicant’s claim to fear harm due to his work as a journalist. The Authority does not say whether that consideration is on the basis of a political opinion or imputed political opinion or a particular social group claim. The applicant would give the Authority “benefit of the doubt” that it was considering a claim of imputed political opinion. In my view, it was not necessary for the Authority to specify which attribute was the basis of the claim for the purposes of s.5J because the Authority did not consider that the applicant’s work as a journalist exposed him to a real chance of serious harm and did not accept that the applicant would work (or would need to work) as a journalist in Afghanistan in the future. In essence, the Authority did not accept that the applicant’s limited past work as a journalist would give him a profile which would attract the adverse attention of the Taliban (or anyone else) and found that the applicant had given up his work as a journalist prior to coming to Australia and would not resume it. It was thus not necessary for the Authority to find that the applicant could modify his behaviour to avoid persecution. Rather, the Authority found that the applicant had already abandoned the profession of journalism and would not resume it.

6. Further, to the extent that there was a particular social group claim, this was not based upon some immutable characteristic. It was based upon the voluntary adoption of a profession. Thus, the particular social group was not characterised by what the applicant was but, rather, by what he did. It was open to the Authority to conclude that what the applicant did in the past would not expose him to a real chance of serious harm (or a real risk of significant harm) and it was also open to the Authority to find that the applicant had ceased those activities prior to coming to Australia and would not resume them if returned to Afghanistan.

7. Counsel for the applicant drew my attention to country information before the delegate that pointed to the risk posed to journalists in Afghanistan, particularly when reporting on insurgent anti-government activities. The short answer to that information is, however, that the Authority reasoned that the applicant was no longer a member of the class of persons who might attract adverse attention and that his past activities did not give rise to a profile that would attract adverse attention notwithstanding his cessation of those activities.

8. I see no basis to conclude that the Authority’s reasoning would have been any different if it had specifically considered the applicant’s claim as a particular social group claim.

Conclusion

1. The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will do so order.

2. I will hear the parties as to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  20 June 2019