DIJ17 v Minister for Immigration
[2018] FCCA 2407
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIJ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2407 |
| Catchwords: MIGRATION – Protection visa application – review of decision of the Immigration Assessment Authority – reasonableness of relocation – whether the Authority erred in failing to consider material matters – whether the Authority erred by failing to deal with its finding on discrimination – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA Other materials cited: |
| Cases cited: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 MZANX v Minister for Immigration & Border Protection [2017] FCA 307 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 |
| Applicant: | DIJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 395 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 14 June 2018 |
| Delivered at: | Sydney (Perth by video link) |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R S Jahanke, Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 20 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 28 October 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 395 of 2017
| DIJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 20 June 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Afghanistan who arrived in Australia on 14 August 2012. On 21 October 2015, he lodged an application for a protection visa. That application was based upon the following claims.
The applicant is a Shi’a Muslim of Syed ethnicity from Kandahar. When he was eight years old, his family left Afghanistan for Pakistan to escape the civil war and stayed in Quetta without visas or legal entitlements for approximately 20 years until attacks upon Shi’a Muslims forced them to return to Afghanistan.
In or around 2009, the applicant’s brother-in-law, Mr H, was attacked by members of the Taliban due to his employment at an Afghan Police Academy overseen by the US military. Mr H was, as a consequence, hospitalised before being transported to India to receive specialised medical treatment. His wife, parents and children stayed with the applicant and his wife for the next 3 years.
Sometime in 2012 the applicant was approached by Taliban militants who claimed that they knew he was protecting Mr H’s family and accused him of providing shelter to supporters of the United States (US). They threatened to kill him if he was seen in Kandahar again. The applicant then stayed at his cousin’s home for approximately one week and fled to Quetta. From there he arranged to flee to Australia.
In addition to these claims the applicant claimed that he feared persecution by the Taliban and Islamic State because of his Shi’a faith, his ethnicity, his affiliation with Mr H and his imputed support for the coalition forces and the Afghan government because of the time he had spent in a western country.
On 28 October 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority in accordance with s.473CA of the Migration Act 1958 (Cth). On 24 November 2016, the applicant’s representatives sent a detailed submission to the Authority. Subsequently on 4 April 2017, the Authority invited the applicant to comment on the information that it regarded could be the reason, or part of the reason, for affirming the delegate’s decision. The applicant’s representative responded to that invitation on 19 April 2017 with a further detailed 19 page submission. It will be necessary to return to some of the detail of that submission in due course.
On 20 June 2017, the Authority affirmed the decision to refuse to grant the applicant a protection visa. The Authority accepted that the applicant faced a real risk of significant harm if he were to return to Kandahar but found that it would be reasonable for the applicant to remain in Kabul or Mazar-e-Sharif. The applicant’s application for judicial review focuses upon the second of these conclusions.
Consideration
Two relevant criteria for the grant of a protection visa are found in sub-ss.36(2)(a) and (aa). The first of those requires an applicant to meet the definition of a refugee in s.5H of the Act. That section relevantly requires that an applicant have a well-founded fear of persecution. The meaning of that phrase is defined in s.5J for the purposes of the Act. Section 5J(1) provides relevantly that there is a real chance of persecution for a number of specified reasons that relates to all areas of a receiving country.
In this case, for the reasons given by it at [24] to [51], the Authority concluded, that while the applicant did have a real chance of persecution in Kandahar that real chance did not relate to Kabul city or Mazar-e-Sharif. It was for that reason that the Authority concluded at [52] that the applicant did not meet the definition of a refugee in s.5H(1) and therefore did not satisfy sub-s.36(2)(a) of the Act.
The criterion in sub-s.36(2)(aa) requires, relevantly, that there be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Afghanistan.
However, that provision is qualified by s.36(2B) which provides that 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 … it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.
The applicant submitted, and the Minister accepted that, sub-s.36(2B)(a) of the Act imports the “relocation principle” explained by the High Court in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18. That proposition may be accepted.
In SZATV the plurality explained, at [24], that what is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. That means that an assessment of whether relocation is reasonable will require a decision-maker to assess, at a minimum, the particular objections raised by the visa applicant in relation to that issue: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; SZVRA v Minister for Immigration & Border Protection [2017] FCA 121 at [18]; see also CSO15 v Minister for Immigration & Border Protection [2018] FCAFC 14 at [48]; CRI026 v The Republic of Nauru (2018) 92 ALJR 529 at [39] and CRI028 v The Republic of Nauru (2018) 92 ALJR 568 at [57].
In AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 the Full Court explained:
[27]It is well accepted that how an administrative decision-maker (including the Tribunal) approaches the question of whether it is reasonable to expect a protection visa applicant to return to a particular part of her or his country of nationality will depend to some extent on the framework set by the claims made by the visa applicant about why it is not safe, and/or not reasonable for her or him to return to a particular location or locations: see SZMCD at 438 [123]; Randhawa at 443 (Black CJ); SZATV at [24] (Gummow, Hayne, Crennan JJ), at [81] (Kirby J); SZSCA at [27], [31]-[33] (French CJ, Hayne, Kiefel, Keane JJ); CSO15 at [26]-[27], [47]-[48] and MZYPW at [9] (Flick and Jagot JJ). However as Mortimer J noted in MZANX at [58]:
There is no doubt that the “framework” set by an applicant may be an important factor. Indeed, the appellant submits the reviewer did not pay sufficient attention to the framework set by his adviser’s submissions on the two questions of “insecurity, political instability and social problems” and “unemployment such as to impact his ability to meet his basic needs”. However, it is important to recall that the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker’s experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia’s protection obligations. It is, as the courts have said many times, an inquisitorial task, informed by what an applicant puts forward, but not necessarily confined to those matters.
In MZANX v Minister for Immigration & Border Protection [2017] FCA 307 Mortimer J explained that the process of evaluation was a fact intensive one:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
It is first necessary to consider the objections put forward by the applicant to the possibility that he might be required to relocate within Afghanistan in order to avoid the persecution that he faced in Kandahar. These objections were principally put in the applicant’s second set of submissions made to the Authority in respect to the invitation by the Authority in April 2017. The objections outlined and, in some respects explained in detail, in that submission included:
a)chronic mass unemployment in Afghanistan;
b)slum-like living conditions;
c)a lack of access to safe water;
d)a lack of “pre-identified” accommodation options;
e)the lack of reintegration services and endemic local corruption; and
f)the lack of health and sanitation.
At [57] of the submission[1], the applicant’s representative made the following submission:
Access to safe water is a general challenge across Afghanistan. Even in the most developed region of Afghanistan, Kabul, ‘almost half of the capital’s residents lacked regular access to water.’ AI’s 2016 field visit found that ‘[i]n all displaced communities’ visited in Kabul, Mazar-e-Sharif and Herat ‘access to water was a critical issue’ - especially in Kabul and Mazar-e-Sharif where ‘[p]eople were often forced to make long, daily trips to gather water from wells located far away from their homes’. ...
(Emphasis added)
[1] Exhibit A, p.319.
In 2015 the UN OCHA[2] reported that “millions of already vulnerable people in Afghanistan are at risk of contracting diarrhea [sic], typhoid, polio and other water-borne and contagious diseases due to poor hygiene and lack of access to clean water and sanitation”. The applicant fears that he will not have access to safe or clean drinking water.
[2] UN OCHA, Afghanistan Flash Appeal: One Million People on the Move (covering Sep-Dec 2016), September 2016.
The applicant argues that, with perhaps the exception of the reference to unemployment at [65] and to slums in [67] the Authority completely failed to engage with his objections to relocation.
Further, he submits that the reference in the Authority’s reasons to unemployment at [65] and the finding in [67] was inadequate. That was because it was little more than acceptance of advice from the Department of Foreign Affairs and Trade (DFAT) that “Kabul offers a greater range of employment opportunities than many other areas of Afghanistan”. The submission was that this completely failed to grapple with the objection concerning the sheer extent of unemployment in Kabul and Mazar-e-Sharif.
The applicant also submitted that the Authority’s finding, at [67], that the applicant would not be forced to live in slums was equally inadequate. This was because of the specificity of the objection raised by the applicant in his submissions. For instance, in his first submission the applicant had referred to a report from the UNHCR[3] in 2016 that 73.8% of the urban population in Afghanistan live in slum households and the following objection was made in the second submission:
[60]Given that the Applicant has no ‘pre-identified accommodation and livelihood options’ in Kabul, Mazar-e-Sharif or Herat, the UNHCR Guidelines advise that he is ‘likely’ to find himself in a situation comparable to that of other urban IDPs[4]. Further, access to adequate housing is a problem for most Afghans, with UNHABITAT[5] claiming that ‘[t]he vast majority of urban Afghans live in under-serviced, informal housing with little tenure security and very poor access to basic services such as water and sanitation. This is particularly so in Kabul, where 66% of the dwelling stock is comprised of irregular housing’. However, the situation for returnees is even worse with the OCHA stating in September 2016 that ‘[s]helter is one of the main concerns for returnees’ in Afghanistan. Amnesty International’s 2016 field report found that the clay houses used by the displaced populations in Afghanistan were ‘overcrowded, damp and facilitate the spread of diseases’ – they did not ‘protect the families from the winter cold or summer heat, and they are full of dust and mosquitoes in the summer’.
(Without alteration)
[3] United Nations High Commissioner for Refugees.
[4] Internally Displaced Person.
[5] UN Habitat, United Nations Human Settlements Programme. The Commission on Human Settlements and its Secretariat, the United Nations Centre for Human Settlement (Habitat) including UN Habitat and Human Settlements Foundation was transformed into the United Nations Human Settlements Programme (HABITAT), pursuant to resolution A/RES/56/206 of the General Assembly, effected 1 January 2002.
The applicant further submits that the Authority even accepted that the applicant would “face challenges because ‘[r]ents in Kabul tend to be expensive compared to most other parts of Afghanistan’” (see [65]) and that as a result “many residents of Kabul live in informal settlements”, and yet without explanation, did not accept that the applicant would be forced to live in slums (see [67]).
The Minister submitted that the Authority engaged at length with the applicant’s submissions and the relevant country information (see [46], [47] and later [61]-[67]). He submitted that the Authority engaged in a balanced consideration of the country information before it and the applicant’s submissions regarding relocation, and that the conclusion the Authority reached was neither illogical, irrational nor unreasonable.
Assessment
I accept the Minister’s submission that the Authority took into account the applicant’s submissions concerning relocation. At [61] it said that it had regard to the personal circumstances and immediately summarised the applicant’s major concerns:
... The applicant has stated he will not be safe anywhere in Afghanistan due to his association with MH and the associated threat against him, because Hazaras and Shi’as are targeted everywhere and there are no safe places in Afghanistan. It was also submitted that the applicant has no meaningful support networks (family, tribal) in Kabul or Mazar-e-Sharif, has no pre-identified accommodation and livelihood options and may be forced to live in the slums of the city, would be required to live in conditions of severe hardship amounting to being destitute and forced into poverty unable to accommodate for his basic needs, including food, safe water and shelter. …
However, it is one thing to recognise or be cognizant of a particular objection but it is quite another to engage with them in the way that is required by the question raised by sub-s.36(2B)(a) of the Act. That question is, as the authorities outlined above establish, a fact specific enquiry and one that may, depending upon the material before the Authority, require some close analysis of each of the objections. I am not satisfied that that occurred in this case.
The Authority’s consideration of the issue was set out in [62] to [69] of its reasons. The Authority first identifies the opinion given by UNHCR in connection with relocation to the effect that such relocation is:
... reasonable where the individual has access to shelter, essential services (sanitation, health care, education) and livelihood opportunities, and a traditional support network of members of his or her (extended) family or members of his or her larger ethnic community. ...
It noted that DFAT also supported the conclusion that tribal and family affiliations were important and that kinship was central to identity and acceptance in the community as well as for finding shelter and employment. For that reason, it was said that Afghans tend to reside in places where their ethnic group consists the local majority. The Authority also noted the DFAT opinion that a lack of financial resources and lack of employment opportunities were the greatest constraints on successful internal relocation and that underemployment was higher across Afghanistan.
The Authority noted at [63] that the UNHCR’s opinion that there were exceptions to the requirements of external support such as young, “single able bodied men and married couples of working age without identified specific vulnerabilities” and that these persons may be able to access “necessary infrastructure and livelihood opportunities to meet the basic necessities of life” in areas such as Kabul and Mazar-e-Sharif.
At [64] the Authority took into account the insurgent violence and criminality but concluded that relocation to Mazar-e-Sharif or Kabul is not unreasonable in light of those circumstances.
The Authority accepted at [65] that there were economic and other challenges in relocating to the city including evidence of unemployment, underemployment, expensive rents in Kabul and the fact that many residents in Kabul live in informal settlements. It also accepted that while there was little information on employment in Mazar-e-Sharif, the Authority accepted that due to it being a major urban area where IDPs and refugee/returnee populations are likely to settle, there were likely to be similar pressures in terms of accommodation, employment and basic services and that these factors would make relocation challenging.
However, the Authority did not accept in the applicant’s specific personal circumstances that the applicant would become destitute or that the challenges would make relocation unreasonable. It proceeded in the following 2 paragraphs to explain the reason for that conclusion:
66.Country information indicates that these large urban areas offer greater opportunities for employment and access to services. Like Kabul, Mazar-e-Sharif is reported as one of the biggest commercial and financial centres of Afghanistan, and its political and economic weight is big and getting bigger. The government control, relative stability and greater economic opportunities will be conducive to his finding employment.
67.I accept that the applicant has never been to Kabul or Mazar-e-Sharif and may not know anyone else there, however there is a substantial Hazara community in both cities and he has demonstrated that he is resourceful and resilient and has successfully lived apart from his family and settled in unfamiliar places. The applicant is an able bodied male of working age and on the evidence, he has no vulnerabilities which would prevent him from obtaining employment. He has experience in jewellery/goldsmith industry and doing manual labour as a furniture assembler. Kabul offers a greater range of employment opportunities than many other areas of Afghanistan. Mazar-e-Sharif, is one of the biggest commercial centres and the more stable security and greater economic opportunities in these cities will be conducive to the applicant’s ability to find shelter, employment and the basic necessities. I consider the applicant would be able to obtain some form of employment. There is also nothing before me to suggest he would not be able to draw on his family in Kandahar for some support given they have been helping to support his family in Quetta and were also supporting him in Australia for a period. I do not accept the suggestions raised by the representative that the applicant will be destitute and forced into poverty or forced to live in slums. In the event that he returned to Mazar-e-Sharif instead of Kabul I also do not accept that he would be unable to obtain a flight ticket for onward travel, even taking into account the cost of a flight.
At [68] the Authority went on to consider the situation concerning the applicant’s family and at [69] set out its overall conclusion:
I am satisfied that in Kabul or Mazar-e-Sharif the applicant would be able to earn a livelihood and that he would have access to the necessary infrastructure and essential services to sustain himself and meet the basic necessities of life. While he would initially be recognised as an outsider in those cities, I am satisfied that over time the applicant would find community support among the Hazara/Shi’a populations of the city. I find it would be reasonable for the applicant to remain in Kabul or Mazar-e-Sharif.
The Authority’s reasoning was that, given the relative economic strength of both Kabul and Mazar-e-Sharif, and the applicant’s own experience and resourcefulness, he will be able to find a job and, as a result, will be able to sustain himself and meet the basic necessities of life. As a matter of logic there appears to be little wrong with that reasoning. The difficulty with it, however, is that it fails to grapple with the essential element of the applicant’s objections to relocation, namely, that the reality in those cities was that the basic resources were meagre and there was stiff competition for them. For instance, the applicant relied on information to the effect that “almost half of the capital’s residents lacked regular access to water”. That information was not qualified by any reference to employment and so objection was not addressed by the Authority’s conclusion that the applicant would be able to find work.
Conclusion
For that reason, the Authority did not properly consider the issue raised by s.36(2B) of the Act and so fell into jurisdictional error. There will be an order for the issue of writs of certiorari and mandamus.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 7 September 2018
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