Dez18 v Minister for Home Affairs
[2020] FCCA 2880
•23 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEZ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2880 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that it was illogical and manifested a misapplication of ss.5H, 5J and 36(2B)(c) of the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.5, 5H, 5J, 36, 473CA, 474, 477 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313 SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 |
| Applicant: | DEZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1725 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 September 2019 |
| Date of Last Submission: | 23 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 23 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms A.F. Garsia |
| Solicitors for the Applicant: | Playfair Legal Pty Ltd |
| Counsel for the First Respondent: | Mr G. Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1725 of 2018
| DEZ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Afghanistan. He left Afghanistan illegally in 2008 and travelled to Karachi where he remained until September 2012. He departed Karachi by air and subsequently arrived in Indonesia. He then departed Indonesia and arrived by boat at Christmas Island on 24 December 2012 without a visa permitting him to enter and stay in Australia. As such he was an unauthorised maritime arrival who could not make a valid visa application. However, on 1 December 2015 the Minister lifted the bar preventing him from applying for a visa.
On 19 July 2016 the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Afghanistan;
a)from generalised violence;
b)because of a land dispute with members of his mother’s family;
c)as a perceived opponent of the Taliban;
d)as a male landowner and eldest male of a family;
e)as a returned asylum-seeker from the West; and
f)because of significant health concerns.
On 28 July 2017 a delegate of the first respondent (“Minister”) refused the applicant’s application. Because the applicant was an unauthorised maritime arrival:
a)who entered Australia on or after 13 August 2012, but before 1 January 2014, and had not been taken to a regional processing country;
b)in respect of whom the Minister had lifted the bar preventing him making a valid visa application; and
c)who had made a valid application for a protection visa,
he was a “fast track applicant”, as that term is defined by s.5(1) of the Migration Act1958 (“Act”). Consequently, the delegate was obliged to refer the applicant’s application to the second respondent (“IAA”) for review: s.473CA.
The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
APPLICATION FOR AN EXTENTION OF TIME
The application commencing this proceeding was filed outside the limitation period prescribed by s.477 of the Act but at the trial the time for filing the application was extended to the date on which it was filed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
BACKGROUND FACTS
Protection visa claims
The applicant made various claims in his statutory declaration dated 8 July 2016. He also gave oral evidence at a protection visa interview before the delegate on 22 March 2017. The facts alleged by the applicant in support of his claim for a protection visa were summarised by the IAA in its decision record as follows:
a)he was born in Takhar province in the north-east of Afghanistan and lived there until he was between 16 and 18. His parents and sister remained in this province;
b)being the eldest son in the family he was entitled to inherit the family properties, which included a house in a town and a farming plot;
c)his mother’s uncle, J, and a cousin, AB were powerful figures with strong links to the Taliban and wanted to take over his family land;
d)in 2008 he found out that J and AB’s families were plotting to kill him and another uncle, A, so that they could take his land and A’s land;
e)a few days later his father saw some of AB’s family in the town. Those people said that he (the applicant) had to come and meet with them, failing which the applicant’s father would be killed. His father returned home and warned him and A;
f)he and A fled to Kabul where they then travelled illegally to Pakistan, remaining there until September 2012. They left for Australia because they were scared that they could be arrested and deported to Afghanistan;
g)after he and A left, J and AB continued to target his family by beating his father and illegally taking all of the family’s land and A’s land;
h)he remained in danger as his father transferred the title of land to him so that J and AB could not get it;
i)the village elders would not help his father because they feared J and AB and their links to the Taliban;
j)in June 2017, AB’s relatives came to his family home, assaulted his father and threatened the family to [make them] leave. His two younger brothers fled to Iran and his sister lives with her husband but his parents were too old and frail to leave;
k)if he returned to Afghanistan he would feel compelled to fight for the land. If he did not do so, the community would consider that he had dishonoured his family and would ostracise him; and
l)he would be perceived as opposing the Taliban and harmed because of the land dispute with J and AB. He would also be harmed because he would be returning from the West and would display the manner and appearance of someone from the West.
In March 2016, the applicant was involved in a serious car accident in Australia, suffering injuries to his lung, face and brain. In a report dated 5 July 2016 he was noted as “likely to suffer from chronic pain syndrome for long which will affect his quality of life.”
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s decision was based on the following findings and reasons:
a)the IAA accepted that the applicant was a Sunni Tajik from Takhar province in the north-east of Afghanistan;
b)the IAA had concerns regarding the plausibility of the applicant’s story as, apart from his claims, he had provided no evidence, such as statements from family, in reference to the land dispute. The IAA also noted that the applicant had not explained why he, and not his father, would have been targeted in 2008 when he was only 16 with no title yet to the land;
c)the IAA did not find it plausible, if J and AB were intent on taking the land, that they would not take action against the applicant’s father, particularly if the father was going to the elders;
d)the IAA did not accept that the applicant’s family was threatened in 2017 or that his brothers had to flee;
e)the IAA also did not accept that there was a land dispute or that the applicant was threatened and had to flee to Pakistan because of threats.It did not believe there was a land dispute and so did not accept that the applicant would face ostracism if he returned to Afghanistan. It was therefore satisfied that he did not face a real chance of harm for any reason arising from the land dispute;
f)because the applicant had not provided any evidence for his claim to fear harm as a male landowner and eldest male of a family other than by reference to the land dispute, the IAA was satisfied that he did not face a real chance of harm for being a male landowner and eldest male of a family;
g)the applicant’s claim to fear harm from the Taliban only related to the dispute with J and AB and neither he nor his family had suffered any harm from the Taliban. The IAA was satisfied that the applicant was not of any interest to J or AB and he therefore did not face a real chance of harm at the hands of the Taliban;
h)the IAA noted that the applicant referred to his medical condition in the context of the reasonableness of relocation “under complementary protection” but was satisfied that the applicant did not require any ongoing inpatient or medical care beyond pain management that could be treated with analgesics;
i)the IAA did not accept that the applicant would face a real chance of being identified as having returned from a western country and suffering harm as a result. It noted that when the applicant travelled to Pakistan, he had not claimed that his family told anyone of his travel onwards to Australia. The applicant claimed that he might be identified from the way he dressed, spoke and carried himself, although he had not provided any explanation or evidence of this;
j)the IAA considered the applicant’s claim that he feared generalised harm from violence in Afghanistan and that if he returned he would go to his home province of Takhar where his parents were. The IAA referred to country information relating to violence and found that while violent attacks still occurred, including 136 security incidents in Takhar Province between 1 September 2015 and 31 May 2016, the majority were attacks on police, military, government, judiciary or media and that there was no information that civilians were specifically targeted in Takhar. It concluded that the risk of violence to the applicant was remote;
k)the IAA also considered whether the applicant would face a risk of harm in travelling to the province of Takhar. It noted that abductions and other forms of harm on “the road networks” were generally not random but instead targeted people associated with the government, international community or people who appeared wealthier than other Afghans. A large proportion of these abductions concerned Hazara people. The IAA noted that the applicant was a Sunni and a Tajik and had not claimed either that he had any involvement with the government or that his family were or appeared to be any wealthier than other Afghans. Even so, improvised explosive devices (“IEDs”) and landmines were often deployed on the roads and in most cases the initiating system would not distinguish between military and civilian targets. The IAA accepted that the applicant would be at some general risk of harm from IEDs and landmines, when travelling to the Takhar province, but not a targeted risk;
l)the IAA concluded the applicant did not meet the requirements of the definition of refugee in s.5H(1) and did not satisfy s.36(2)(a) of the Act; and
m)the IAA did accept that the applicant faced a real risk of harm from IEDs and landmines while travelling to Takhar Province but applied s.36(2B)(c) of the Act which provides that there is taken not to be a real risk of harm if the risk is one faced by the population of the country generally and not by an applicant personally. As the IAA was satisfied that the risk faced by the applicant was a general risk faced by anyone travelling by road, and not by him personally, it concluded that he was not owed protection under s.36(2)(aa) of the Act.
PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1.…
2.The Second Respondent made irreconcilable findings, in that it found that the applicant was at risk of being harmed.
Particulars
a. A “risk”, inherently, is a risk that is not a remote risk.
b.Yet, the Second Respondent asserted at the same time that the applicant faced a risk and a remote risk.
c.This betrays some error, the precise nature of which need not be particularised.
3.The Second Respondent misunderstood s 36(2B)(c) of the Migration Act 1958 (Cth), in that it could not rationally be said on the evidence before it; and cannot rationally be said in any event, that the population of the country of Afghanistan is exposed to the risk identified at Reason [46] given that the overwhelming majority of the population of Afghanistan would never travel on the roads in question.
Ground 1
The first allegation was abandoned.
Ground 2
In support of his allegation in the second ground of the application, the applicant referred to para.34 of the IAA’s reasons where it was said:
There is no other information before me that indicates that civilians are specifically or systematically targeted in Takhar. The statistics noted above indicate that Takhar has reported significantly fewer incidents of violence, including undirected and untargeted killings of civilians, than two of its neighbouring provinces and about the same number as a third province. I note that a report of a lower incidence of violence in one place compared to another does not of itself mean that there may not be a real chance of harm in that place. However, in this case, while I accept that there may be a risk to civilians in Takhar of being harmed by generalised violence, including as bystanders, from explosive attacks or from explosive remnants of the fighting, I am satisfied that any risk the applicant may face in relation to generalised violence in Takhar is remote, and therefore I am satisfied that he does not face a real chance of harm from generalised violence. (emphasis added)
The applicant argued in his written submissions that, in the context of the Act, it was inconsistent of the IAA to find that a risk of harm existed but then to find that the risk was remote. The submission was that the IAA would not have concluded that the risk existed if it had also considered it “material”. The applicant referred in that regard to Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
Relevantly, Chan’s case concerned and considered the criteria set by the Convention relating to the Status of Refugees for determining whether a person is a refugee and in particular what “well-founded” meant in the Convention’s “well-founded fear of persecution” criterion. Justice McHugh said in relation to that:
… an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear will should be characterized as “well-founded” for the purpose of the Convention and Protocol. (at 429)
It is to be noted that the test now applied by ss.5H and 5J of the Act relevantly reflects his Honour’s reasoning.
According to Chan’s case, the decision-maker must consider whether there is a real risk that relevant harm will befall an applicant if returned to their country of nationality or usual residence. Although it was contended in particular (a) of ground 2 of the application that a
“risk”, inherently is a risk that is not a remote risk,
that is correct only to the extent that a risk must be a “real risk” in order that an applicant’s fear of persecution can be well-founded. It is apparent from McHugh J’s statement in Chan’s case that a risk may exist but not be a “real risk”. Contrary to the burden of the applicant’s submission, the IAA does not err by identifying the existence of a risk but then concluding that that risk is not serious enough to satisfy the relevant criterion of the refugee test.
It was also contended in argument that having found the occurrence of the violence it identified, it was illogical of the IAA to find in this case that the applicant faced only a remote risk of suffering serious harm in Takhar. However, the IAA noted that most of the violence it identified was directed at officials, with the most serious attack on civilians being an attack on female school students. It also noted that Takhar Province was less violent than some of its neighbours. Even if a different decision-maker might have reached a different conclusion, it was open to the IAA on that evidence to conclude that if the applicant returned to Takhar Province he faced only a remote risk of serious harm from generalised violence.
For those reasons the IAA’s conclusion was not based on irreconcilable findings or illogical as the applicant contended.
Ground 3
In the third ground of the application the applicant referred to s.36(2B)(c), quoted earlier, and alleged that the IAA could not have rationally concluded that the risk presented by travel on the road to Takhar was one faced by the population of Afghanistan generally and not by the applicant personally,
… given that the overwhelming majority of the population of Afghanistan would never travel on the roads in question.
The applicant argued that a risk faced by the residents of an area or district, because of the risks posed in that particular area or district, was a risk faced by each of those residents personally: BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313 at 320 [38]. That proposition must be accepted but it not relevant to this case. The IAA said at paras.44 and 46 of its reasons:
I accept that the applicant may face a risk of harm from IED or landmines on the road while accessing Takhar. I accept that it is more than remote and is therefore a real risk. I accept that the harm inflicted by IED and landmines can include death or serious injury and that this would constitute significant harm as defined by s.36(2A). I am satisfied that the applicant faces a real risk of significant harm accessing Takhar.
…
I have noted above that while IED and landmines are often deployed along the roads, there is no information to indicate that this is done to target specific individuals. These devices are generally random weapons (apart from suicide bombers who have utilised vehicle-borne IED to target check points, government vehicles and military convoys) and the risk that they pose to civilians is a general risk to all persons travelling on the road network. On that basis I am satisfied that the risk that the applicant faces is one faced by the population of the country generally and is not faced by the applicant personally and that as a consequence, the applicant is taken not to have a real risk of significant harm in this respect.
In para.36 of its reasons, summarised above at [11(k)], the IAA had already summarised the dangers posed by road travel in Afghanistan generally, referring to landmines and IEDs in the course of doing so.
The relevant issue in this case, as disclosed by pars.44 and 46 of the IAA’s reasons, was not concerned with hazards posed by residence in Takhar Province but with whether any citizen of Afghanistan travelling on the Afghan road network would face the same risks as the applicant would face if he travelled that network to return to Takhar: SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]; BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 at [30]-[32]. Having identified that question, the IAA answered it by finding that all persons travelling on those roads, which plainly included all Afghan citizens, would face those risks. That was a conclusion open on the evidence.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 23 October 2020
0
4
0