Dbo17 v Minister for Immigration
[2019] FCCA 3349
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBO17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3349 |
| 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) |
| Applicant: | DBO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 279 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 29 October 2019 |
| Date of Last Submission: | 29 October 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleskov |
| Solicitors for the Applicant: | Beena Rezaee Legal & Migration |
| Counsel for the First Respondent: | Mr Ellison |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Applications filed 11 July 2017, and amended 6 August 2019, be dismissed.
That the Applicant pay the First Respondent’s costs in the fixed sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 279 of 2017
| DBO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 7 June 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant the Applicant DBO17 a protection visa. On 11 July 2017, the Applicant filed an originating application in this Court, asking this Court to review the matter.
The background to the matter is that the Applicant is a citizen of Afghanistan. He was born in the village in the district of Shahristan in Daykundi Province. He is of Hazara ethnicity and the Shi’a Muslim faith. He claims that he does not have a right to enter and reside in any other third country.
He graduated from high school in 2000 and studied a Bachelor of Biology at Kabul University, completing that qualification in 2006. He then worked in Daykundi as a trainer teacher for about 18 months and then he later went to Pakistan and completed a number of IT qualifications.
He then started working for a firm called Chemonics. He worked there as a systems analyst in January 2012. He worked in the regional Afghan municipalities program for urban population. As part of that project, he worked as a systems analyst, travelling regularly with other social workers and IT staff members of Chemonics.
In the beginning, the United Nations Assistance Mission in Afghanistan provided transport for him and other members to travel throughout the region and he felt safe with this method of transport, as he was not passing through dangerous areas. The UNAMA office in Daykundi later closed and they no longer provided that transportation.
The Applicant claims in early 2012, he was on leave and he wanted to travel to Kabul as there was no travel available from the UNAMA. He did not feel safe travelling by car, as they were forced to cross through dangerous parts of Afghanistan, but he elected to use locate transport. When he reached an area called Maydan Wardak, he changed cars as it was dangerous to continue on a journey in the same car. He feared that the Taliban would have recognised the car travelling through other provinces.
When he arrived at Kabul, he received a phone call from a member of the Taliban. That person told him that he, the Applicant, was working for the opposition, and assisting the US Government, and that this made him an enemy of the Taliban. He was told that he had escaped this time but he will not have a chance to escape again. He was warned that he should never be seen in that part of town again. The caller said that if the caller catches the Applicant, he will kill him and every member of his family.
The Applicant said that in the past he had received similar calls, but this was the most serious call he had received from the Taliban. That week, when he returned to work, he falsely told his employers at Chemonics that his mother was sick and he needed to take leave to care for her. He said that he did not want to tell them the truth about the Taliban threats and he thought it was too dangerous to tell them because there would be a threat of harm to himself and his family.
He returned to Kabul using an alternate route, where he thought he would not be seen by members of the Taliban. On arriving in Kabul, he obtained a passport through the Interior Ministry and he organised his departure through people smugglers. He did not contact his family or friends about the threats until he arrived safely in Dubai.
He claims that he also feared a local Jihadi commander, active through the Sharistan district. He was the commander of a local military movement and had been targeting elders in the Applicant’s community. That commander had killed an elder in the community in the past, and the Applicant was scared that this commander would target other members of his local community.
The Applicant claims that, despite ceasing his employment with Chemonics, he feels it is too late for redemption; that the Taliban have formed a view that he is associated with the opposition and an enemy of the Taliban.
His main reasons for seeking the protection of Australia are that he fears harm at the hands of the Taliban and the local Jihadi commander. He fears harm on the basis of his Hazara ethnicity, his Shi’a Muslim faith and his association with Chemonics International, a project that was funded by US Aid. He also fears that as a person who has lived in a foreign country, he will be accused of being a foreign servant and an infidel, and this will create problems for him.
Those claims were thoroughly assessed by the IAA. As the IAA noted, the real fear stemmed from the phone call that the Applicant received. At paragraph 20 of the IAA’s reasons, the IAA noted that:
While his period of work was short, I find it plausible he could have been linked to the international community and that he may have been telephoned and seriously threatened by members of the local Taliban, between the period of February and March/April 2012. I accept these threats occurred and that the Applicant felt he could not return to his home area and continue his work without risk to his safety. However, the question is whether the Applicant would be at a real chance of being seriously harmed, on this basis, in all areas of Afghanistan.
Later, at paragraph 22, the IAA noted that while the Applicant was telephoned and threatened while he was in Kabul, the threat did not come from within Kabul but rather from his home area or, more specifically, a junction that the Applicant passed through on the way to Kabul from Daykundi.
The IAA found it plausible that the Applicant may have had a profile with the Taliban in, and around, his home area, particularly if he travelled to other neighbouring districts or provinces for work. However, he did not claim to have ever worked for Chemonics in Kabul, or that he was ever threatened by the Taliban or other persons in Kabul.
At paragraph 24, the IAA said:
Given his past profile, I cannot discount that there is a more than remote chance that the Applicant would be targeted for serious harm if he returns to his home area, due to the potential for him to be recognised, or his past history and profile with the Taliban to be revisited. However, I do not accept he is on a black list or that his history or profile is such that he would be recognised, followed, tracked, identified or targeted outside of his home area, or the area that he previously worked, whether by the Taliban or its network of informants.
The IAA said that, as he would have no profile outside of his home area, they rejected any submissions that he had a higher profile or that he had a cumulative profile due to other factors, such as his asylum claims in Australia.
The IAA then spoke of the Applicant’s employment. The IAA recognised that his profile may be higher if he worked for an international firm or if he worked for a government firm, but his profile would be low if he worked for a private firm or within a small business. As far as that was concerned, the IAA said that they were satisfied the Applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution by working in these low profile jobs.
The IAA was not satisfied that the Applicant’s employment or qualifications were some form of innate characteristic which he could not change; and the IAA was also not satisfied that the Applicant had a profile in Kabul because he worked for Chemonics and so would suffer persecution because he had worked for Chemonics.
The IAA looked at the Applicant’s return as a foreigner or as a failed asylum seeker. At paragraph 40, the IAA said:
I am not satisfied that in a major urban area like Kabul which has a diverse ethnic and religious population and has seen considerable population growth from returnees and IDPs over the years, that the Applicant would face a real chance of being seriously harmed as a returnee from the west or because he may have sought asylum, including as a Hazara Shira. Furthermore, there is nothing before me that indicates that a person who has spent time in the West would be imputed to be an infidel solely on the basis of returning to Afghanistan from the West or that they would face a real chance of harm on this basis.
The IAA assessed the risk that the Applicant had as a Shia Hazara from the Taliban, from insurgents or from ISIS. The IAA was concerned with the rise of ISIS but looked at the country information about sporadic attacks that had been aimed at Shia or, more particularly Shia Hazaras, that have a high casualty rate. At paragraph 53 the IAA spoke about the rise of ISIS trying to drive conflict in the area into a sectarian direction.
The IAA looked at this aspect and noted the submission from the Applicant as to the question not being about sectarianism but whether there is a widespread targeted killing of Hazara Shia Muslims. The IAA said at paragraph 53 that they accepted that there was:
…no requirement for the feared harm to occur in the context of broader sectarianism. The purpose of the assessment of sectarianism was to consider both whether Islamic State’s goal of achieving sectarianism is likely to take hold and therefore whether the risk of Hazara Shias being seriously harmed in Kabul is likely to increase beyond the threat of infrequent high casualty attacks. Instead, the information before me indicates the sectarianism and the threats from this are unlikely to take hold and that the risk to Hazara Shias are confined to the credible but remote risks from infrequent high casualty attacks.
The IAA said at paragraph 56 that:
Considering all of the information before me, I am satisfied that Islamic State is a genuine but limited and unsophisticated threat in the country. While I accept the group is able to orchestrate occasional attacks in Kabul, including against the Hazara Shia population, on having regard to the security presences and government control in the city, the limited capacity of Islamic State and its lack of territorial foothold in the area, the size and diversity in population of the city of Kabul and the Applicant’s lack of other profile or proximity connected to those in high profile groups, I find there is only a remote chance, and therefore not a real chance, of the Applicant being seriously harmed on the basis of his religion and/or ethnicity or for any other reason by Islamic State or its affiliated groups.
At paragraph 58 the IAA said:
Based on all of the information before me I find there is not a real chance of the Applicant being seriously harmed in Kabul for reasons of his ethnicity or religion by Islamic State, the Taliban or other insurgent groups active in the area. I find that the Applicant does not have a well-founded fear of persecution on this basis.
The IAA looked at other discrimination/persecution because of the Applicant being a Shia Hazara and the IAA was not satisfied, on the country information before them that any of those matters amounted to serious harm.
Therefore, the Applicant did not meet the criteria to be classified as a refugee.
The IAA then looked at the complimentary protection criteria and had said that they had accepted that there is a real chance of the Applicant being seriously harmed if he returns to his home province of Daykundi and that this risk could involve torture, detention or death.
The IAA said that it follows that they were satisfied there is a real risk that the Applicant would suffer significant harm if he returns to his home area. But the IAA noted in looking at the complimentary protection criteria that s.36(2B) provides that there is to be taken not to be a real risk that a person will suffer significant harm in a country if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk that the person would suffer significant harm.
In much the same way that the IAA had already looked at the question of the Applicant living in Kabul, the IAA assessed whether it would be reasonable for the Applicant to relocate from Daykundi to Kabul or to an area such as Mazar-e Sharif. The IAA looked at whether there would be a risk simply because of the Applicant’s profile and did not find that he had a profile that would lead to that risk.
The IAA looked at the Applicant’s personal characteristics, his educational qualifications, the fact that he could speak English very well and his social links and support mechanisms in Kabul. The IAA took into account all of the submissions that had been made to them.
The IAA looked at whether the Applicant could find work and came to a conclusion that the Applicant’s networks, education, skillset as well as his experience in the city would enable him to find work and accommodation and access to essential services. The IAA acknowledged the Applicant’s concern about discrimination but found that Kabul, having the large and diverse population, would allow for those sorts of matters. Such matters were found to not amount to serious or significant harm and therefore the IAA concluded that it was not unreasonable for the Applicant to relocate.
Having come to all of those matters, at paragraph 99 the IAA said:
There are not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Afghanistan, that there was a real risk that the Applicant would suffer significant harm…
Therefore, the decision was affirmed.
The grounds of this application were amended on 28 August 2019. The first ground was not argued and that really stemmed from a proper reading of what it was that the IAA had said in paragraph 24 of their decision.
The only two grounds that were argued were grounds 2 and 3.
Ground 2 is that the IAA failed to consider the Applicant’s employment prospects in Kabul, in the context of its finding that the Applicant would need to modify his behaviour; vis a vis seeking employment with lower risk profile organisations, to avoid the possibility of being targeted for harm on that basis (being the basis on which he had already been targeted in the past).
That ground really stems from the submission that the Applicant had made to the IAA, which is found at page 168 of the court book. That claim was this:
In the delegate’s assessment of the Applicant’s reasonable relocation in Kabul, it was stated that:
As a part of his ..... application he indicated he could speak, read and write in English.
And that according to the Danish Refugee Council:
Persons with foreign language skills and computer skills have very good employment prospects in Kabul.
However, what was not taken into consideration was the fact that by utilising these skills, the Applicant would be exposing himself to imminent persecution and discrimination at the hands of the Taliban and other insurgents, from being associated with Western society.
The Applicant said that there is a paradox between what the IAA said at paragraphs 26, 27 and 28 of the decision, when looking at the refugee matters, and what was said in paragraphs 90, 91 and 92. For completeness, I will read those paragraphs into the record,
26. One residual question is that, notwithstanding his limited profile in Afghanistan, whether he would return to employment with an international organisation. The country information indicates there are credible risks to persons with such profiles, even in major cities like Kabul where the government has effective control and there is a strong police and military presence.
27. In terms of his return to Afghanistan, the Applicant did not claim he had intention or desire to work for Chemonics again or find work with a government or international organisation. The evidence before me does not suggest that his decision to apply for work with Chemonics was anything other than the Applicant taking a job opportunity in his chosen field of computing. As a question of fact, I am not satisfied he would seek to work for Chemonics or a similar government or international organisation in the future.
28. In any event, I find that if the Applicant feared harm on the basis of employment with the government or an international organisation elsewhere, such as Kabul, he could seek alternative employment that would not hold such a risk profile. It is apparent from his evidence that the Applicant could take reasonable steps to avoid harm. He is highly educated and has excellent skills in computing and the English language. He has experience living in Kabul and I find he would have a network of friends and some family in the city. Notwithstanding the difficult economic situation in Afghanistan, I am satisfied there is no impediment to him finding work with a low profile private business that would provide a safer workplace and is not connected to a government or international organisation and would avoid him developing an adverse risk profile. I am satisfied the Applicant could take reasonable steps to modify his behaviour to avoid a real chance of persecution.
At paragraph 90, when looking at the reasonableness of relocation, the IAA said this:
90. In terms of finding work, the representative has contended that the Applicant’s English skills would not in fact be an asset but instead would lead him to be at risk from the Taliban and other insurgents, as he would be linked to the West or the international community. I have found above that the Applicant would not be targeted on the basis of any actual or perceived connections to the West within Kabul, let alone when considered against the size and diversity of the capital. The representative’s submission presupposes that his teaching English or computer skills could only be used in the context of government or international organisation. But I do not agree with that assessment. The IOM is quoted as saying that most jobs are found in the public sector, often small business and there are only a few opportunities in the public sector.
91. The representative also quotes the Afghanistan Independent Human Rights Commission, through the Danish report, as stating that Kabul has more than 5 million inhabitants and has reached its limits. It goes on to state:
There is no more room for people to settle in Kabul. People cannot find a decent livelihood and houses, as well as public services such as water and sanitation are not available.
And:
The situation in Kabul is worse than in other major cities in Afghanistan because of the demand for jobs and social services is higher than what the city can offer.
The quotes in the report need to be read in context. The Danish report cites the AIHRC in the context of pressures on the city from vulnerable IDPs and returnees and the difficult conditions in the informal and illegal settlements. It does state that Kabul is under significant pressure from population movements and that unemployment is high. I accept that is the case. The report further highlights that for people coming to Kabul from the countryside without any education, the only opportunity available is often low-paid daily labour, mainly in the construction or service sector. However, the report also highlights differences for a person in an advantaged position like the Applicant. It quotes the IOM as stating that educated people have better opportunities to find a job within the government or in private companies, particularly those with foreign language or computer skills. As above, it also points to the importance of existing networks, which I am satisfied the Applicant has in Kabul.
92. The representative contends that the situation has likely deteriorated, given these statements are from 2012. More recent advice from DFAT continues to indicate that the influx of IDPs and returnees to the city has put pressure on the local labour market. Consistently with the Danish report, it states that those who have foreign language and computer skills tend to be best placed to find well-paid employment in Kabul, with new arrivals from rural areas at a disadvantage due to their lack of relevant skills. DFAT assesses that many of these new arrivals also lack a network of family contacts needed to find employment. In this situation, employment may be irregular and often insecure and that many work as relatively poorly paid day labourers, who seek occasional work as it becomes available.
I accept the situation likely has not improved since the 2012 report but recent advice indicates to me that a person in the Applicant’s situation remains in a far superior position to other IDPs and unskilled returnees. I accept there would be significant challenges for him in relocating and that employment opportunities, accommodation and access to services are at a premium. However, I am satisfied the Applicant’s networks, education and skillset, as well as his experience in his city, would enable him to find work and accommodation and access to essential services, notwithstanding the significant pressures in the city and in Afghanistan generally.
The Applicant submits that the IAA has acknowledged that the Applicant would have to have a low profile but this is in contrast to what was said in the latter part of paragraph 91, that the IOM has stated that educated people have better opportunities to find a job within the government or in private companies. The Applicant submitted that the skills, that the Applicant has, are not suited to small businesses. His being a system analyst would not be useful to a small business and his teaching skills would not be useful to a small business.
Although English language skills would be useful to all enterprises, the Applicant submits that the IAA does not assess whether this would provide a relevant competitive advantage for the Applicant. The Applicant submitted that there was no engagement with these considerations and that the IAA passed the issue too casually.
The Applicant submitted that in circumstances where the Applicant made substantial objections to the reasonableness of relocation on the grounds of his poor employment prospects, the failure to grapple with the limitations that he would face demonstrates a failure to exercise jurisdiction or a failure to consider the claims made.
The submission was that even if the IAA found the Applicant might have been able to secure adequate employment in a private enterprise using only a limited range of his skill set, the IAA plainly fails to assess whether it was reasonable to expect the Applicant to give up pursuing a career with the skills that he had developed or whether it was reasonable to expect him to give up pursuing a career using the skills in the field of improving other people’s lives, as he had previously done.
The problem with that submission is that it dismisses what was said in paragraph 92 as simply looking at generalities. But the IAA was required to assess whether it was reasonable for the Applicant to relocate considering his prospects of employment:
It is assessed that he is in a far better position because of his skills to get employment than unskilled persons.
The fact that the IAA was comparing the Applicant to unskilled persons is a recognition that he would be vying with others for low profile jobs rather than the jobs with higher profile for which he has appropriate skills. The juxtaposition of paragraphs 26, 27 and 28 does fit with paragraphs 90, 91 and 92.
The IAA is not saying that the Applicant has skills that would suit him for those high profile jobs and, therefore, it is reasonable for him to move. The IAA is saying instead that the Applicant would be a candidate for the lower profile jobs and there would be competition for those positions but, because of his skill set, he would be at an advantage over those others for those low profile jobs.
It does not seem to me that there has been a lack of engagement with the submissions. It seems to me that, on a proper reading of the reasons of the IAA, they have truly engaged with the submission of the Applicant. I find that there is no jurisdictional error illustrated and so this ground fails.
Ground 3 is that the IAA acted illogically or unreasonably in purporting to state that the risk of harm in Kabul from ISIS was “credible but remote” in paragraph 53 of the reasons. Paragraph 53 of the reasons was a paragraph that appeared during a discussion of what threat ISIS posed to Hazara Shias. It reads (with my underlining):
The representative has contended that it is irrelevant whether sectarianism is likely to arise in Afghanistan and that the law does not have a requirement that the harm should take place in a sectarian conflict. He posits that the key question is whether there is widespread targeted killing of Hazara Shia Muslims. I accept there is no requirement for the feared harm to occur in the context of broader sectarianism. The purpose of the assessment of sectarianism was to consider both whether Islamic state’s goal of achieving sectarianism is likely to take hold and, therefore, whether the risk of Hazara Shias being seriously harmed in Kabul is likely to increase beyond the threat of infrequent high casualty attacks.
Instead, the information before me indicates the sectarianism and the threats from this are unlikely to take hold and that the risk to Hazara Shia are confined to the credible but remote risk from infrequent high casualty attacks.
The Applicant claims that this is a contradiction. The risk cannot be credible and then also be remote. If it is credible, then that is the end of the story. It cannot be mitigated or downgraded by saying it is remote.
In looking at what it is that is said to be credible or remote, it is clear that the IAA is talking about the risk to Hazara Shia. They are real risks but remote. The discussion in relation to that was summarised in paragraph 56, which I have already read into the record. It seems to me that paragraph 56 puts what it is that the IAA is saying about being “credible but remote” into its true context.
I reject the submission that there is a contradiction in saying that the risk is both credible and remote. During argument in the hearing, I posited the example of the threat of ISIS in France to tourists. There were terror attacks in Paris and vans driven into crowds in Nice. These attacks were directed at tourists. In describing the risks for tourists to France, a description of “credible but remote” would be apt. The risk is credible or real because it is not illusory. It can happen, it has happened and there have been high casualties. But it is still remote because there are not that many ISIS or ISIL devotees who would act that way, security in France is going to be strong and it would never get to the point where tourists simply would not be safe in France.
Similarly, here, ISIS is a credible and real threat because of what they can do. What they can do has been documented but the risk is still remote and it is remote because of the matters that the IAA have identified; those being that the Afghan, United States and Taliban forces are intent on eliminating the presence of ISIS in the country, which would limited their expansion; the number of active members in Kabul was in the dozens rather than hundreds; they appear to be focused on propaganda and recruitment; that the group ISIS was limited in being able to carry out infrequent attacks; and, that they were unlikely to be able to drive conflict in a sectarian direction.
It seems to me then, that the words “credible and remote” can stand together and that they properly describe what it is that the IAA has found as to the risk from the ISIS to the Applicant. For those reasons, there is no jurisdictional error and ground 3 also fails.
I find that there has been no jurisdictional error illustrated in the application. I dismiss the application with costs fixed in the scale amount of $7467.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 27 November 2019
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