DBD17 v Minister for Immigration

[2020] FCCA 1734

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBD17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1734

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority did not take into account relevant considerations – whether the Authority properly considered the applicant’s claims – whether the Authority correctly applied the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DB, 473DD, 476

Applicant: DBD17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 372 of 2017

Judgment of: Judge Street

Hearing date: 26 June 2020

Date of Last Submission: 26 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Counsel for the First Respondent: Ms C Taggart via Microsoft Teams

Solicitors for the First Respondent: AGS

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 372 of 2017

DBD17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 23 June 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country. The applicant was found to be a Hazara Shia born in a particular district in the Wardak province. The applicant arrived in Australia as an unlawful maritime arrival in around the second quarter of 2013.

3. In August 2016, the applicant applied for a protection visa. The applicant claimed to fear harm, in summary, on return to Afghanistan by the Kuchis, the Taliban and Islamic State because he is a Hazara Shia as well as because of the time he has spent in the West.

4. On 8 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a protection visa.

5. On 14 November 2016, the Authority wrote to the applicant explaining that his application for a protection visa had been referred to the Authority for review. The letter attached a factsheet and practice direction, providing the applicant an opportunity to put on new information and submissions.

6. On 24 April 2017, the Authority sent the applicant an invitation to comment letter in relation to the potential for the applicant to be able to relocate to areas like Kabul and Mazar-e-Sharif where the applicant would not face a real risk of suffering significant harm.

7. The Authority in its reasons identified the background to the applicant’s protection visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.

8. The Authority referred to the applicant’s submissions provided on 4 December 2016 and identified new information regarding country information in respect of which the Authority was not satisfied there were exceptional circumstances to justify considering the same. The Authority’s reasons reflect a consideration of the whole of the provisions of s 473DD of the Act in that regard.

9. The Authority also identified further information in relation to the applicant’s father’s alleged data mismatch explanation and was satisfied that there were exceptional circumstances justifying considering that new information.

10. The Authority identified other new information regarding the sending of money and the applicant finding work and found that there were not exceptional circumstances justifying consideration of that new information. The Authority’s reasons again reflect a consideration of the whole of the provisions of s 473DD of the Act.

11. The Authority identified obtaining new information in relation to country information and the sending of the invitation to comment letter dated 24 April 2017 and identified the applicant’s response dated 8 May 2017 in relation to which the Authority accepted there were exceptional circumstances to justify considering the new information.

12. The Authority identified the relevant law, including an attachment of the applicable law incorporated by pagination in the Authority’s reasons.

13. The Authority summarised the applicant’s claims.

14. The Authority referred to the applicant’s claim that his father was killed by the Taliban in relation to a land dispute. The Authority was not satisfied that the applicant had been a truthful witness in relation to this claim. In that regard, the Authority referred to the absence of any mention of the applicant’s father’s death at the biodata interview. The Authority also referred to the change in date of the applicant’s father’s death. The Authority also referred to country information regarding the availability of fraudulent documents and gave no weight to the petition letter.

15. The Authority took into account information referred to in the invitation to comment letter in respect of the applicant sending money to Kabul and that this was raised by the Delegate with the applicant and that the applicant was sending money back to Kabul to his father. The Authority found the applicant’s explanation for the use of his father’s name not to be plausible.

16. The Authority was not satisfied that the applicant’s father is deceased and found that the applicant has been sending money to his father since his arrival in Australia. The Authority was satisfied that the applicant has been sending money to his father in Kabul.

17. The Authority referred to ethnic-based clashes in the applicant’s home district and was satisfied that there is a real chance of the applicant being subjected to serious harm on return to his home area due to his ethnicity and his family’s land ownership.

18. The Authority, however, correctly identified that the well-founded fear under s 5J of the Act is one that must relate to all areas of the receiving country. The Authority referred to the applicant’s wife having been born in Kabul, and the applicant having four sisters who reside in Kabul and that his father was going to Kabul to collect money sent by the applicant.

19. The Authority was satisfied that the applicant does not face a real chance of serious harm in Kabul from the Kuchi tribes on account of being from a Hazara family who owns land in his home district now or in the reasonably foreseeable future.

20. The Authority was satisfied that that there is not more than a remote chance of the applicant being harmed by insurgent groups on his return to Kabul.

21. The Authority was not satisfied that there is a real chance of the applicant being subjected to serious harm in Kabul on the basis of his religion and/or his ethnicity now or in the reasonably foreseeable future.

22. The Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of being a returnee from a Western country on his return to Kabul now or in the reasonably foreseeable future.

23. The Authority found that the applicant did not have a well-founded fear of persecution in Kabul now or in the reasonably foreseeable future.

24. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

25. The Authority took into account the findings made in relation to the 1951 Refugee Convention in considering complementary protection.

26. The Authority was not satisfied that the applicant would be prevented from obtaining employment.

27. The Authority was not satisfied that there is a real risk of the applicant suffering significant harm on return to Kabul because he is a Hazara Shia, after living in a Western country or because he owns land.

28. The Authority turned to the issue of whether it was reasonable for the applicant to relocate to Kabul. The Authority referred to the applicant’s wife having been born in Kabul, the applicant’s four sisters residing in Kabul and his father travelling to Kabul in respect to the money sent by the applicant. The Authority also referred to the fact that the applicant has previously worked in Kabul for approximately two to three months on two occasions and that he worked in Kabul for approximately six months before departing to Australia.

29. The Authority was satisfied that the applicant has previously resided and worked in Kabul and that the applicant has the benefit of familiarity with the city and, in conjunction with his family support, he will be able to establish networks on return. The Authority was satisfied that the applicant will be able to earn a livelihood and he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life.

30. The Authority referred to taking into account the applicant’s personal circumstances and country information. The Authority was satisfied that it was reasonable for the applicant to relocate to Kabul.

31. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Afghanistan from Australia, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

32. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 7 July 2017. On 10 August 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed no such documents.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant by way of oral submissions referred to more recent events that have occurred after the decision of the Authority. The applicant provided a logical explanation for the significance of those events in relation to the country to which he would be returning.

4. Nonetheless, more recent country information concerning the applicant’s claims is not capable of giving rise to any jurisdictional error. That is because the more recent country information was not before the Authority. No jurisdictional error arises by reason of the applicant’s reference to more recent events in Afghanistan, including in Kabul.

5. The applicant also referred to the period of time during which he had been in Australia and that he had become westernised. The Authority expressly referred to the applicant’s claim in relation to having become westernised and was not satisfied that the applicant would face a real chance of serious harm on the basis of being a returnee from a Western country on return to Kabul now or in the reasonably foreseeable future.

6. The applicant also referred to the fact that he has been suffering, more recently, from depression since the decision of the Authority. There was nothing before the Authority to suggest that the applicant raised any fear of harm in relation to his health and the applicant was referring to events that had occurred after the Authority’s decision.

7. The applicant’s health and/or depression that may have impacted after the Authority’s decision is not a matter capable of giving rise to any jurisdictional error by the Authority. That is because it was not a claim or an integer of a claim that arose on the material before the Authority.

8. The applicant otherwise put submissions inviting the Court to determine the matter on compassionate and discretionary grounds. This Court has no power to grant relief on the bases of discretion or compassionate grounds.

9. The applicant’s submissions, in substance, invited the Court to engage in a merits review. This Court has no power to review the merits.

10. Nothing said by the applicant orally identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. The Assessor failed to properly consider all of my claims.

   2. The Assessor didn’t give me a chance to comment on one aspect of my claims.

Ground 1

1. In relation to ground 1, the Authority’s reasons reflect an active intellectual engagement with the whole of the applicant’s claims and the making of dispositive findings that were open for the reasons given by the Authority as summarised above. There has been no claim identified that the Authority failed to properly consider. Without particulars, ground 1 is incapable of making out any jurisdictional error. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the nature of the proceedings under pt 7AA of the Act are, subject to the provisions in pt 7AA, identified in s 473DB of the Act in that the Authority is to consider the review material without accepting or requesting new information and without interviewing the referred applicant. In circumstances where the Authority sent the applicant a letter dated 14 November 2016 inviting the applicant to put on new information and submissions at the time of the referral of the application and where the Authority sent the applicant an invitation to comment letter dated 24 April 2017 expressly addressing the issue of the reasonableness of relocation to Mazar-e-Sharif and Kabul and where the applicant provided submissions in response to the same, which were the subject of an active intellectual engagement by the Authority, the absence of any express consideration by the Authority of the powers under s 473DC of the Act cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 15 July 2020