Dig18 v Minister for Home Affairs

[2019] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIG18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 450

Catchwords:
MIGRATION – Application for safe haven enterprise visa – findings adverse to applicant – s. 36(2)(a) and s. 36 (2)(aa) criteria not established – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.473CB, 5H(1), 36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: DIG18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 631 of 2018

Judgment of: Judge Egan

Hearing date: 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Brisbane

Delivered on: 13 February 2019

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms E. Hoiberg

Solicitors for the First Respondent: Clayton Utz

IT IS ORDERED THAT:

1. The application for review filed on 27 June 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 631 of 2018

DIG18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Afghanistan.  He arrived in Australia by boat on 8 July 2013.

2. On 31 July 2017, a Delegate of the Minister refused the applicant’s application for a Safe Haven Enterprise visa.  The matter was then referred to the Immigration Assessment Authority (‘the Authority).

3. The applicant made submissions to the Authority on 24 August 2017.  On 25 May 2018, the Authority affirmed the Delegate’s decision to refuse the applicant a protection visa.

4. By an application (application for review) filed on 27 June 2018, the applicant sought review of the decision of the Authority.  The applicant’s grounds for review are as set out in the originating application as follows:

   1. That the delegate did not give full regard to the merits of my specific situation and did not thoroughly consider my application.

   2. The delegate failed to take into account relevant factors in my case.

5. It is apparent from the grounds for review filed on behalf of the applicant that each such ground is related to what the Delegate did or not did not decide, rather than the Authority.  The grounds for review are, on their face, without merit.

6. The first respondent has not taken the point, but rather assumed, whether erroneously or not, that the word “Delegate” in each of the grounds for review was meant to refer to the Authority.  Because the first respondent has not taken the point, this hearing will proceed on that basis.

7. It is clear, from a reading of the material, and of the reasons of the Authority, that the Authority paid close attention to the material before it. At [3] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the Secretary pursuant to the provisions of Section 473CB of the Migration Act 1958 (Cth) (‘the Act’).

8. The Authority confirmed that it had received submissions from the applicant detailing why the Delegate’s decision was wrong.  The Authority regarded such submissions as argument, rather than information.

9. Reference was made by the Authority to the fact that some of the submissions made on behalf of the applicant related to “country information”.  As such, it post-dated the Delegate’s decision, and the Authority was satisfied that that information could not have been provided at an earlier time.  Nevertheless, the Authority considered the information, and was satisfied that there were “exceptional circumstances” justifying its consideration of it.

10. The applicant’s claims for protection were summarised by the Authority as follows:

    7. The applicant's claims can be summarised as follows:

    ·The applicant was born in Iran to Afghan national parents. His father was born in Kandahar and was a Sunni Pashtun who converted to become a Shia Muslim. He passed away when the applicant was very young. The applicant's mother is a Shia Hazara who was born in Sar-e-Pul and currently resides in Iran.

    ·The applicant identifies himself as a Shia Muslim who has resided in Iran his whole life. He has never been issued with any Iranian refugee cards. He obtained a taskera when he went to Afghanistan for the first time in 2011. This taskera was destroyed on his way to Australia, however in 2013 his step sister who resides in Afghanistan obtained a copy of his taskera. The original of this taskera copy has been submitted in support of his claims and identity.

    ·His parents left Afghanistan for Iran prior to the applicant's birth as his father had converted from Sunni to Shia Islam and faced retaliation from the Sunni people in Kandahar where he was residing. The applicant's paternal uncle was killed for also converting so his parents feared for their safety and left Afghanistan for Iran.

    ·He has never received any formal education and commenced working when he was nine or ten years old, after his father passed away. He was discriminated against in Iran as he was Afghan. He was also asked for bribes by the police and was only able to obtain low paid casual jobs.

    ·He did not want to live in Iran anymore so he travelled overland to Turkey and had planned to travel onto Europe. After a few months in Turkey he realised it was very difficult so he approached the Afghan embassy and organised to be returned to Afghanistan. He went to Mazar-e-Sharif where his step sister and brother in law were living. He stayed there for a few months and made arrangements to travel to Australia. He then returned to Iran for a few months before departing Iran for Malaysia, Indonesia and then Australia.

    ·Since the applicant's arrival in Australia his brother in law (who resided in Mazar-eSharif) was killed in a hit and run however the applicant believes it was purposefully orchestrated by his father's relatives in retaliation for his father's religious conversion.

    ·He fears returning to Afghanistan from the Taliban and Daesh/lslamlc State (IS) as he is a Shia, Hazara, has been living in Australia (a western country) and will be returning as a failed asylum seeker. He fears harm as he will stand out for the way he speaks, dresses and behaves. He also fears harm from his father's family and others on the basis of his father's religious conversion and because he has tattoos. He also has scars due to previous suicide attempts. He claims the tattoos and scars are considered to be haram and forbidden in Islam and he will be targeted on this basis.

11. At paragraphs [8] – [41] inclusive of the Authority reasons, the Authority dealt with Section 5H(1) “refugee assessment considerations” as well as whether the applicant had a “well-founded fear of persecution” should he be returned to live in Iran, or Afghanistan.

12. The applicant claimed that his parents were Afghan nationals, but that he was born in Iran.  He stated that he had resided in Iran his whole life, but was never issued with an Iranian refugee card.  The applicant claimed that he had been discriminated against in Iran because he was  an Afghan.

13. The applicant claimed that he travelled to Turkey because he did not want to live in Iran any more.  After living in Turkey for some months, he approached the Afghan embassy, and organised to be returned to Afghanistan.  He went to Mazar-i-Sharif, where, it was alleged, his stepsister and brother were living.  He stated that he stayed there for some months before making arrangements to travel to Australia.

14. Some of the documents relied upon by the applicant in his application were found by the Authority to be “irrelevant”. A letter from his employer fell into that category.

15. The Authority was prepared to conclude that the applicant was an Afghan national, and that Afghanistan would be the applicant’s receiving country.  The Authority was also prepared to accept that the applicant had no legal right to return to or reside in Iran.

16. The Authority was not satisfied that the applicant would face any harm, if he was returned to Afghanistan, on the basis of his father’s religious conversion.

17. It was noted that the applicant had voluntarily returned to, and resided in, Mazar-i-Sharif in 2001 and 2011, for a period of 4–5 months, during which time he did not face any threats or have any contact with anyone who suggested or targeted him on the basis of his father’s religious conversion.

18. In that regard, the applicant recorded that the applicant’s stepsister also converted at the same time as her father, and that she has always resided in, and continues to reside in, Mazar-i-Sharif, without harm being inflicted upon her.

19. The Authority found that there was no evidence in corroboration of the applicant’s claims advanced by the applicant that his brother-in-law had been targeted in a hit-and-run accident, the Authority finding that the applicant had “speculated” about the cause of the hit-and-run, even if it had occurred.  The Authority was not prepared to accept that the applicant’s brother had been killed because of the applicant’s father’s conversion.

20. The Authority referred to “country information”, which suggested that Hazaras had not been systematically targeted in Mazar-i-Sharif, where the applicant would be likely to return to in Afghanistan.

21. The Authority was not satisfied that the applicant had any real or perceived connection to the Afghan government or international community, nor that there was any evidence before the Authority to indicate that the applicant would appear wealthier than other Afghanis so as to give rise to any problem for him.

22. The Authority acknowledged that there had been attacks against Shia Hazaras within other parts of Afghanistan, but did not consider that the applicant would have cause to travel to those parts of Afghanistan so as to expose himself to danger.

23. The Authority accepted, based on “country information”, that the applicant could be subject to some discrimination, should he return to Mazar-i-Sharif, in relation to employment.  However, the Authority was not satisfied that any such discrimination amounted to the applicant being exposed to “a real chance of suffering serious harm”.

24. As to the assertion that the applicant would be targeted because of his tattoos and scars, the Authority referred to “country information” which indicated that tattoos had become “popular” in Afghanistan, and that there was no risk of him being targeted by insurgents as a result of him holding some low-ranking profile in Mazar-i-Sharif.  There was also no “country information” before the Authority to indicate that the applicant would face any harm on the basis of having scars from previous suicide attempts.

25. The Authority found that, based on DFAT assessments, returnees from Western countries who maintained a low profile did not face a “significantly” higher risk of violence or discrimination than other people in Afghanistan with a similar ethnic or religious profile.  The Authority noted that the applicant had not lived in Mazar-i-Sharif for a long period of time, and that, therefore, there would be limited knowledge of his past.

26. The Authority was not satisfied that the applicant met the requirements of a “refugee” under the Act, or that the applicant met the criteria as provided for in Section 36(2)(a) of the Act.

27. As to the complementary protection criteria, the Authority found that, whilst the applicant could face some low-level discrimination upon his return to Mazar-i-Sharif, based on the evidence before it, the Authority was not satisfied that that would amount to the applicant facing arbitrary deprivation of life, or would constitute the death penalty or torture. The Authority was not satisfied that that treatment would constitute “significant harm”. The Authority was also not satisfied that there was a real risk that the applicant would suffer harm, including “significant harm”, should he be returned to Afghanistan and live in Mazar-i-Sharif. The Authority accordingly found that the applicant did not meet the criteria as provided for in Section 36(2)(aa) of the Act.

28. As to the first ground of review, the Authority closely considered the applicant’s claims, made both before the Minister and before the Authority.  The Authority appropriately addressed each of the applicant’s claims, and did not fail to deal with any claim of relevance addressed to it.  Although not obliged to address each and every issue before it, the Authority addressed all of the relevant issues put before it by the applicant.

29. The Authority made findings, based upon “country information”, which were adverse to the claims of the applicant.  Ground 1 of the application for review, in effect, seeks a “merits review” of the findings of the Authority, something which this Court, of course, is not entitled to do.  This ground is without merit.

30. As to the second ground of review, the applicant has failed to particularise the claim which he asserts.  The Authority did have regard to all of the information that was before the Delegate, as well as the submissions and additional “country information” provided by the applicant to the Authority.  The Authority appropriately disregarded information which the Authority found to be irrelevant for the purposes of the application before it.  The Authority did not overlook any relevant issue when arriving at its decision.  The second ground of review is without merit.

31. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority.  [1]

    [1]        See Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240

    CLR 611 at [130].]

32. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”.  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

33. No jurisdictional error has been established. The application is without merit in its entirety, and is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 26 February 2019