Dga18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1153

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1153

File number(s):	PEG 330 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	17 May 2021
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) ss 57, 473DC
Cases cited:	DQU16 v Minister for Home Affairs & Anor [2021] HCA 10
Number of paragraphs:	48
Date of last submission/s:	17 May 2021
Date of hearing:	17 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr M. Guo
Solicitors for the Applicant:	Estrin Saul Lawyers
Counsel for the First Respondent:	Mr P. Hannan
Solicitor for the First Respondent	Australian Government Solicitor

ORDERS

PEG 330 of 2018

BETWEEN:

DGA18
Applicant

AND:

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

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	17 MAY 2021

THE COURT ORDERS THAT:

1.The Application filed on 21 June 2018, as amended on 27 May 2019 and 27 July

2.2020 be dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.

REASONS FOR JUDGMENT
(EX TEMPORE)

JUDGE VASTA

1. On 15 June 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, DGA18, a protection visa.  On 21 June 2018, the Applicant asked this Court to review that decision. 

2. The background to the matter is that the Applicant is a Shia Hazara male from the Parwan Province of Afghanistan.  The Applicant was born in the village of Turkman in the Surkh e Parsa district in Parwan.  He had resided there for all of his life, except for about a month immediately prior to departing Afghanistan.  In that month prior to departing Afghanistan, he had been living in Kabul.  

3. The Applicant claimed that his father had been missing since the year 2000; that the Taliban had taken his father while his father was at work; and, that his family had not heard from him since. The Applicant suspected that his father was killed by the Taliban.  The Applicant's mother and brothers continued to reside in the same village.  His sisters, who are married, have moved to neighbouring villages. 

4. The Applicant said that whilst he was residing in the Parwan Province, he ran his own mechanic workshop.  On occasion, he used to fix cars that were owned by the Afghan government; these vehicles included cars for police officers, soldiers and politicians. 

5. The Applicant would travel from Parwan to Kabul once a month on average to obtain supplies for his workshop.  He said that the roads were dangerous and controlled by the Taliban.  He said that he never faced any harm during his travels, but claims that it was only luck that he was not harmed.  He gave an example of one time being on that route when the car in front of him was stopped by the Taliban.  He said that he was lucky to have escaped. 

6. He says that if he is stopped, he will be killed or imprisoned by the Taliban because he is a Shia Hazara, and that he has fixed government owned vehicles. 

7. He also feared harm based on his ability to read and write and the manner in which he speaks.  He says that the Taliban will think that he is a student or has previously been a student. 

8. He also claimed that the Taliban would check his Facebook profile, find out that he has been in Australia and will be accused of being a traitor and an infidel, and someone who has lived in the west. 

9. He also claimed that his mother had told everyone in their village that she only has two sons, and both of those sons live with her.  He said that he fears for her that the Taliban will find out that she has a son who has lived in Australia, and therefore, because she has lied, upon his return, the Taliban would then do something to his mother. 

10. He said that he is unable to relocate anywhere in Afghanistan, including Kabul or Mazar-e-Sharif because the fear of harm extends throughout the country. 

11. The Tribunal looked very thoroughly at these claims.  The Tribunal accepted that the Applicant had lived in the Parwan Province.  They accepted that he had received a formal education from 2000 to 2007, that he had worked as a car welder and that he had commenced his own car mechanic business from 2007, which he operated until his departure in 2012. 

12. The IAA accepted that the Applicant's brothers continue to live with the mother, and that the sisters were in a nearby village.  The IAA accepted that the Applicant was a Shia, and still is a Shia Hazara.  The IAA accepted that the father had been missing since 2000 and that it was plausible that he was taken by the Taliban and killed by the Taliban.  

13. The IAA went through what the Applicant had said in his SHEV interview, as well as his written claims that he had given to the department.  The IAA summarised his evidence as to the business that he had in this way: that the Applicant had claimed that he would need to get supplies for his business in Kabul; that it would take him six to seven hours to travel to and from Kabul; that the roads were unsealed; that he would travel on a mini bus; that he would collect the supplies and return back to the village; and, that he was in Kabul for about 24 hours at the most. 

14. The Applicant conceded that he had not faced any harm or even any threats of harm during the time that he operated his business. The Applicant also said that he did service cars owned by people in the village, as well as passers-by and not just cars owned by the police force, the army and government officials. 

15. He claimed that he was the only person working in his mechanic shop.  He said that he was relatively successful.  He said that the government vehicles were generally Range Rovers and that they had specific car parts.  He said that the Taliban or anti-government elements had harmed people on the roads between his province and Kabul, and that, whilst he had not suffered any harm or come to any adverse attention, he spoke of an incident where he believed that he was close to such harm, in that the car in front of him was stopped. 

16. He claimed that if it is that he is stopped and that he is found with those car parts, that because they may be Range Rover type car parts and that government agents or police or soldiers use Range Rovers, the Taliban would make the connection that he is someone that assists the government and therefore, is pro-government and therefore, anti-Taliban and that they would do him harm. 

17. The IAA went through quite a deal of country information as to the Applicant's home province and the frequency of attacks against Shia Hazaras and also people who have been suspected of being pro-government by these anti-government entities. 

18. At paragraph 32, 33 and 34, the IAA said that:

    [32] DFAT, in 2017 reported that the Afghanistan’s road network is generally poor, particularly in the mountainous central highlands.  Snowfall makes travel in winter more difficult and can prevent travel on roads at high altitudes for extended periods.  Insecurity compounds the poor condition of Afghanistan's limited road network, particularly on roads that pass through areas contested by insurgents.  The Taliban, other AGEs and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common. Officers operating official checkpoints - drawn from the Afghan National Army or police with the aim of improving security on the roads can be inadequately trained and poorly paid.  Corruption at these checkpoints is common.

    [33] The same report indicates that criminals and insurgents on roads tend to target people who appear wealthy or are associated with the government or the international community in attacks that can include kidnapping for ransom.  People from all ethnic groups are vulnerable to their attacks. It can be difficult to ascertain the motivation for attacks and to separate criminal attacks from insurgent activity.

    [34] In his submission to the IAA, the applicant reiterated his fear of harm travelling on the roads between Parwan and Kabul.  While I have accepted the applicant previously travelled on these roads, I have also found, based on the applicant's own evidence that he continued to travel on these roads on a frequent and regular basis despite fearing harm. I have also taken into consideration that he has never faced any harm previously.  I acknowledge the applicant will be required to obtain parts for his mechanic shop from somewhere, however there is no evidence before me to indicate the only option the applicant has is to travel by road to Kabul himself on a monthly basis in order to obtain these parts.  There is no evidence to indicate why these parts cannot be sent to him in Surkh e Parsa, or why he could not obtain these parts from a nearby town or elsewhere.  There is no reasonable explanation presented to indicate why the applicant himself must travel to Kabul.  On this basis, I am not satisfied that it would be unreasonable for the applicant to seek other avenues to obtain the parts he requires for his mechanic shop.  I am not satisfied the applicant must travel to Kabul himself in order to be able to successfully operate his mechanic business upon return to Kabul. 

19. The IAA concluded on this point by saying, at paragraph 36 that:

    I am not satisfied that there is a real chance that the applicant will face any harm upon return to Surkh e Parsa if he wishes to operate his mechanic workshop as he has done previously.

20. The IAA then went through the country information regarding the security situation and found that they were satisfied that the Applicant would not travel on these roads.  The IAA also found that upon return to Afghanistan, if the Applicant were returned to Kabul, that he would then fly from Kabul to Bamiyan and from Bamiyan, be able to travel upon safe roads to Surkh e Parsa. The Applicant would not need to travel on the road between Kabul and Surkh e Parsa, given the finding that the IAA had made about the insecurity of those roads. 

21. The IAA then looked at the claim regarding the fact that the Applicant would have been a person returned from a western country.  The IAA looked at the claim regarding the Applicant's Facebook profile.  The IAA looked at the claim regarding the mother's purported lie.  The IAA looked at the claim about the Applicant being imputed as being a student or someone who was educated and, therefore, being targeted by the Taliban. 

22. Having gone through those claims and finding that they were not satisfied that the Applicant had a real chance that he would face any harm on any of those bases, the IAA concluded that the Applicant did not meet the requirements of the definition of refugee.

23. The IAA then went through the complementary protection assessment criteria.  The IAA found that there was no real chance that the Applicant would face harm on any of the bases that he had put forward.  The IAA was not satisfied that there was a real risk that the Applicant would face significant harm upon return. 

24. For those reasons, the IAA affirmed the decision not to grant the Applicant a protection visa. 

25. The Applicant filed an originating application on 21 June 2018.  The Applicant amended that application on 27 May 2019.  The Applicant further amended that application on 27 July 2020 and it was upon this application that the hearing proceeded today. 

26. Ground 1 of that application realistically required this Court to find that a decision of the Federal Court in DQU16 v Minister for Home Affairs & Anor [2021] HCA 10 was wrongly decided. When the matter came before me on 8 October 2020, I was given information that DQU16 (Supra) was the subject of a successful special leave application before the High Court, and that the High Court would actually hear the application in the early months of 2021.  I then adjourned the matter with an Order that the First Respondent Minister inform the Court within two weeks of the delivery of judgment by the High Court.  The High Court, in late April, delivered their judgment dismissing the appeal and in effect affirming the correctness of the decision of the Federal Court.  The matter resumed before me today, 17 May 2021. 

27. Mr Guo, Counsel for the Applicant, quite correctly conceded that, in light of the High Court decision, ground 1 could not be sustained.  The matter then preceded upon ground 2 only.  That ground is that:

    The IAA unreasonably failed to exercise its discretion in s.473DC of the Act to obtain new information from the Applicant as to why he needed to travel to Kabul to obtain parts for his mechanic shop.

28. To understand this ground, it is necessary first to go back and look at the Applicant's actual written submission to the delegate.  At page 65 of the Court Book, at paragraph 33 of his submissions, the Applicant wrote this:

    In my work as a mechanic I have to travel a lot.  About once a month, I need to travel from my Village of Turkman, Parwan to Kabul.  I need to travel to Kabul for mechanical supplies like oil and spare parts.  A lot of roads in Afghanistan are dangerous, but this main road is particularly dangerous.  This is because the Taliban controls the roads.  They don't have permanent spots.

29. The applicant was interviewed with regard to his claims.  At page 27 of the transcript, which is annexed to the affidavit of Jamie Louise Hick, filed 7 August 2020, the Applicant was asked the following questions:

    DELEGATE: And what work did you do in Afghanistan?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Mechanic service.

    DELEGATE: Okay. And you said in your claims that you travel to Kabul often?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Yeah

    DELEGATE: And you went to Kabul for spare parts and supplies?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Yes.

    DELEGATE: And how often did you go to Kabul?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Half months ago, one month ago [inaudible].

    DELEGATE: And how long were you a mechanic for?  Five years?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: From 2007 to 2012. When I was about 17 years old.

    DELEGATE: And how did you travel to Kabul?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: With a minibus.

    DELEGATE: Did you travel alone or with somebody else?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: No, it is just a car but they are just working on that line.  They are normally having a trip. Like, they go and come back today.

    DELEGATE: So, who did you go with to Kabul?

    INTERPRETER: With other passengers.

    DELEGATE: Okay.  Did you go with any family friends?

    APPLICANT: No.

    INTERPRETER: No

    DELEGATE:  And how long did it take to get to Kabul?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: That time it was about six and half or seven hours.  Sometimes seven and a half hours because the road was unsealed. 

    DELEGATE: Okay. And how long did you stay in Kabul for?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Most of the time I was doing the twenty-four hour trips to Kabul, And then collect my parts and then go back the same day because it was not very safe.

    DELEGATE: Okay. And who did you stay with in Kabul?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: No, I was not staying with anybody when I was in Kabul.  For example, if I was departing there at about four o'clock and then I was arriving there by midnight. And I was just hanging around in the car until the daytime, in the morning And as soon as the morning comes, I pick up all the parts and then travel back the same day. Because mainly, passing that particular area in the night time it will [inaudible] because that area is religious.  

30. Later on in that interview, at page 39:

    DELEGATE: Okay. Let's be clear; you said you worked for the government; is that correct? 

    INTERPRETER: [speaking to applicant]

    DELEGATE:  Because earlier, you said you were self-employed, and it was your business.

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Yeah, the business is mine. But the car, I was providing service for the government.  The government vehicle was coming there, and I was doing the service.

    DELEGATE: Okay, so when you say you worked for the government, you serviced government cars.  Is that what you were saying?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: Because everyone knows that is what I was doing and that I was charging and they were giving me money.

    DELEGATE: Okay. So, why did you leave Afghanistan?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: It was because of the incident that just happened right in front of my eyes, that the Taliban stopped the car in front of me and looking, and then when I come back, I told the same story to my mother and my mother said that it was very dangerous, they are taking off Hazaras from this area and I don't want that to happen to you.  This is very dangerous.  I’ll do everything for you to get out of the country to save your life, that happened to your father."

    DELEGATE: So, they stopped the car in front of you.  If they had stopped you, how would they know that you had serviced government cars?

    INTERPRETER: [speaking to applicant]

    APPLICANT:  [speaking to interpreter]

    INTERPRETER: In that particular occasion, they will accuse me of being a Hazara and a Shia and they would kill me.

    DELEGATE: Okay.

    INTERPRETER: But if they catch me with the load or with the parts, they know which part is used for government vehicles.  Like here, most of the government vehicles are Holden Commodore. But over there, the government vehicle has its own classification.  If they say, "whose is this part?" and they draw the gun to the driver and ask the driver "whose is this part?" the driver has no option to tell that this part belongs to this passenger.  That can lead my life in danger.

31. When the delegate came to make their decision, the delegate said this at CB 114:

    … The applicant claims that in his work role as a mechanic he has worked on Afghan Government owned vehicles, including police cars, soldier's cars and politician's private cars.  He fears he will be in prison and/or killed by the Taliban if they discovered he has worked on Afghan Government owned vehicles and/or private vehicles owned by Afghan Government workers. 

    The applicant claims that he travelled to Kabul for spare mechanical parts and supplies such as oil about once a month.  He indicated the road between Kabul and Parwan is dangerous because of the Taliban.  He fears will be stopped by the Taliban and harmed because they will assume the spare parts are for Afghan Government owned vehicles. 

    The applicant said he travelled to Kabul by bus. He stated he was never stopped by the Taliban, nor has he ever been personally threatened by the Taliban, but he was motivated to leave Afghanistan after an incident when the vehicle in front of the one he was travelling in was stopped by the Taliban. 

    It was put to the Applicant during the SHEV interview that even if the Taliban saw that he was carrying vehicle parts and oil during his journey between Kabul and Parwan, they would not be able to link this with him working on government owned vehicles.  He indicated the Afghan government only used Range Rovers so if he had Range Rover parts, they would know he was working on government vehicles. 

    I note this is inconsistent with statements made in the Applicant's written claims that he sometimes did not know whether the vehicles were government owned or not because the person would not be wearing a uniform.  I acknowledge that he did indicate he had worked on police cars and soldier's cars, although I note these claims were not made during his entry interview. 

    I am mindful that the Applicant could have requested others to retreat parts from Kabul for him or request for the parts to be delivered to him in Turkman.  Overall, I find the Applicant's claimed fears about being perceived by the Taliban as working on Afghan government owned vehicles, such a police cars and army vehicles because of the spare parts he carried, to be implausible and far-fetched.

1. After the delegate had refused the visa, the Applicant's matter was referred to the IAA.  The IAA contacted the Applicant and his migration agent.  The Applicant put in a submission to the IAA.  In that submission, the representative said that, at paragraph 1.9 of that submission which is reproduced at page 162 of the Court Book, the following:

   Even if it is not accepted that the applicant is a member of a PSG based on his profession and need to travel to get the parts required for his business, the risk due to travel should be factored into any assessment of this claim.  Following from the decision in Appellant s395/2002 v MIMA, consideration must be given as to what the applicant will do if returned to Parwan Province in Afghanistan.  He will need to continue his occupation of mechanic, necessitating regular trips into Kabul.  The determination of well-founded fear of persecution arises out of a consideration of what might happen if returned, not whether it is possible for adverse consequences to be avoided.  The delegate errs when he forms this conclusion.

2. At page 164 of the Court Book, at paragraph 2.2, the submission is:

   It is submitted that consideration needs to be given to what the applicant will likely do upon return to Afghanistan.  He will likely travel the dangerous Taliban controlled roads in Parwan to earn a living.  In the applicant's [sic] circumstance, significant harm he fears is principally ‘arbitrary, depravation of life’ by insurgents in the area where the government objectively does not exercise control. This would include large areas of Parwan Province.

3. All of that material that I have gone through, that is, the Applicant's own application, what he had said to the delegate, the delegate's decision and the submission by his representative was before the IAA.  The IAA correctly summarised at paragraph 17, this part of the claim where the IAA said.

   The applicant operated his own mechanic business from 2007 to 2012.  In order to obtain parts for his business, the applicant was required to travel from Surkh e Parsa to Kabul once every four to six weeks. 

4. I will underline the word “required” in that particular paragraph. 

5. With all of that background, it is useful to look at the phrasing of ground 2 - that is “the IAA unreasonably failed to exercise its discretion in s.473DC of the Act or obtain new information from the Applicant as to why he needed to travel to Kabul to obtain parts for his mechanic shop”. The argument mounted by the Applicant is based on paragraph 34 of the IAAs reasons where the IAA said:

   … however there is no evidence before me to indicate that the only option the applicant has is to travel by road to Kabul himself on a monthly basis in order to obtain these parts.  There is no evidence to indicate why these parts cannot be sent to him in Surkh e Parsa, or why he could not obtain these parts from a nearby town or elsewhere.  There is no reasonable explanation presented to indicate why the applicant himself must travel to Kabul…

6. The Applicant submits that this conclusion by the IAA was not a procedurally fair conclusion to make; that is, that the IAA was prepared to say what they have said without considering whether or not to invite the Applicant to provide more material. 

7. The Applicant points to what the delegate had said in their decision where they said, at page 115 pf the Court Book :

   I am mindful that the applicant could have requested others to retrieve parts from Kabul for him or request for parts to be delivered to him in Turkman…

8. The Applicant submits that the IAA has simply used that conclusion by the delegate and transposed that as a conclusion of their own. The Applicant says that the conclusion that the IAA has made was not a proper conclusion to make, because it offended s. 57 of the Migration Act 1958 (Cth) (“the Act”).

9. However, when I look at what it is that the Tribunal has actually said, they have not, as it were, followed what the delegate has said at all.  What the IAA must do is assess the claim.  As has been pointed out, the claim was that there was a need for the Applicant to travel to Kabul, that there was a need for him to travel those roads to get these spare parts and oil for his business, and that he was required to travel by road. 

10. As it is that he makes the claim, he must prove that claim to the satisfaction of the IAA.  The Applicant has well and truly been told, both by the delegate and by the department, when he puts in his claim that he must provide all evidence that it is that he wishes to put before the delegate to prove that he fits the criteria of refugee, or fulfils the criteria of complimentary protection.  His claim that he put before the delegate, and therefore before the IAA, was that there was a need for him to travel and that he was required to travel personally.

11. The IAA has simply found that they were not satisfied of that claim.  The IAA has said, in the parts that I have already quoted, that there was no reasonable explanation as to why the Applicant needed to travel personally.  That is not a finding of fact.  That is not, as it were, making a conclusion of fact without allowing a person who would have information to give that information to assist in the decision as to whether to make that fact or not. 

12. Because it is that the Applicant must prove the matters, it is not for the IAA to find a gap in the evidence given by the Applicant, and thereby becoming obliged to point out that gap to them or to inform them that they cannot prove what it is that they are saying. The submission of the Applicant is, in effect, that such a burden should be carried by the IAA and that body is then obliged to also invite them to give the IAA more material on that point. That is contrary to what the Act asks the IAA to do in that the IAA must decide these matters upon the evidence that is before them.

13. It seems to me, because it was simply the Applicant saying that he had a need to travel, that it was then for the Applicant to prove that need. There was no requirement for the IAA to even consider exercising the discretion under s 473DC of the Act. The Applicant had simply made a claim and that claim could not be proved to the satisfaction of the IAA.

14. One could also add that the Applicant, knowing that the delegate had “concluded” that they were mindful that the Applicant could have done this or could have done that with regard to getting the parts some other way, did not in any way refute that “conclusion” in their submission. 

15. That is not to say that the Applicant was obliged to put on some other evidence or anything of that nature, but the Applicant did not even take issue with that particular “finding” of the delegate that he could have done something or other with respect to obtaining the parts. It is, then, difficult to see how it is that consideration of the discretion under s 473DC of the Act could even arise.

16. Having come to that view, it seems to me, then, that there was no failure to exercise the discretion.

17. Therefore, there was no jurisdictional error and so I dismiss the application, with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       28 May 2021